A Virginia prenuptial agreement is a contract between two people that is agreed upon before their marriage. The agreement will list the property, assets, and debts each person is bringing into the marriage and who would retain these, as well as properties and assets acquired during their marriage, should the parties divorce – typically as an attachment to the agreement itself and acknowledged by the parties.
To create a valid prenuptial agreement, the agreement must be in writing and signed by both parties, ideally before a notary public, which then becomes effective when the parties are married. The agreement must be signed sufficiently in advance of the wedding, disclose both parties’ financial lives fully and accurately, and allow an opportunity for both parties to consult an attorney without pressure before signing, should they choose.
The terms of a prenuptial agreement in Virginia are allowed to seem one-sided if both spouses agree to it: for instance, if a wife waives alimony or spousal support or, in another instance, if a husband waives his right to his wifes’ investment or brokerage accounts that accumulate during the marriage. Courts will enforce premarital agreements if there was an adequate opportunity pre-marriage to consider the agreement, sufficient financial disclosure at the time of signing, and opportunity for either party to have the document reviewed by independent counsel. In practice, we find if you start the process in advance of the wedding day and fully disclose all relevant personal financial information, most parties will waive their right to counsel. However, it is important that, if the spouses move to another state and then decide to divorce, the other state will uphold one-sided prenuptial agreements as well. Even if the other state does not uphold one-sided prenuptial agreements, the parties can agree to abide by Virginia law during divorce proceedings in their prenuptial agreement, but other states can still potentially supersede the agreement anyways.
Why Sign a Prenuptial Agreement?
Divorce proceedings are expensive, full of risk, time-consuming, and difficult to predict an outcome. Parties often seek to avoid the unknown and the possibility of someday leaving all decision making to a judge, rather than remaining in control, as much as possible. Further, we find lots of clients have acquired assets or had kids pre-marriage and seek to protect these interests in the event of divorce or dissolution. Additionally, entering into a marriage without a prenuptial agreement runs a risk of each party losing their important assets. Often parties want to protect their rights to the assets they are bringing into the marriage before they are contested in a divorce. Further, parties bringing debts into a marriage without a prenuptial agreement can lead to both spouses sharing debt liability, even if the debt was not taken out by both spouses. A prenuptial agreement can ensure the debts of either party can stay with the appropriate person.
It is important to remember that prenups do not have to be win-lose agreements. On the contrary, prenuptial agreements can be created as win- wins for both parties involved with the right counsel and planning strategies. For example, most agreements drafted at Smith Strong are created to protect both parties’ assets and simply divide the jointly-titled marital property 50/50 between them. So, as a marriage matures, more property, investments, and assets become jointly-titled, and both parties are entitled to their equal share of everything. Thus, it is not typical that one party gets nothing, rather it’s more predictable for both parties what the outcome will be, which normally looks like a 50/50 division. Predictability of outcome provides predictability in dissolution.
Canceling a Prenuptial Agreement
A prenuptial agreement can be revoked or canceled if done in writing and notarized by both parties. Cancellation or revocation assumes it is in writing, notarized, done without fraud or duress, and done with appropriate opportunity for either side to seek their own legal representation (although personal legal representation can be waived).
Although both parties can agree they do not need their prenuptial agreement anymore, there are other ways the couple can cancel their agreement, even if they might not mean to. For example, if the spouse trying to enforce the prenuptial agreement cannot produce it or forgets to mention one exists until the start of a divorce trial, the court has the power to ignore the agreement all together. Additionally, since the purpose of a prenuptial agreement is to keep each spouses’ assets separate, if the spouses merge all their property and assets during the marriage, the court can assume they did not want their prenuptial agreement anymore. Therefore, it is important to work with strong counsel to maintain enforceability.
If you want a prenuptial agreement for your upcoming marriage, you can choose to write one yourself or create one with the assistance of an attorney. Although you may create the agreement yourself, you will only be able to test how effective it is during the divorce, which is when it matters the most. The attorneys at Smith Strong, PLC can assist you in creating a prenuptial agreement that will not only protect your interests, but will also protect your most important property in the event of a divorce – thus providing you stability and control of your future.
If you would like assistance creating your prenuptial agreement, please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to discuss your options. One of our attorneys can meet with you by zoom, phone, or in-person meeting. 30-minute consultations are available, so this can be done quickly during a break in your day without leaving your home or office.
Special Thanks to Brayden Meadows for his assistance with this article.