Prenuptial agreements are a somewhat controversial area of family law that center on defining certain rules and guidelines for a potential future divorce or separation before the couple is officially married.
However, over the past several years these agreements have become increasingly common and helpful to newlyweds in Virginia.
There are many reasons a couple might want to create a prenup, ranging from a desire to create a general separation agreement to the protection of assets for individuals going into their second marriage.
Many Virginians don’t want a divorce to interfere with a business they have built, inheritance for their existing children, or assets they’ve worked hard to accumulate.
If you decide to go forward with a prenup, however, you need to make sure that the contract is enforceable.
Especially in Virginia, weak prenups are often unenforceable in court, so you’ll want to at least have an attorney look yours over.
Below, we’ll discuss everything you need to know about prenups in Virginia.
We’ll answer questions such as “what is a prenup” and “should I get a prenup.” We’ll also discuss the critical elements you should include in your agreement.
What is a Prenup?
At their most basic level, prenuptial agreements are contracts. This means that all prenups made and enforced in Virginia follow the rules surrounding contract law.
Many people associate the word “prenup” with divorce.
However, the most important function of a prenup is to give parties greater power over their property.
In fact, traditional premarital agreements primarily affected property rights on the death of one spouse, and, in the past, agreements rarely included any divorce planning provisions at all.
Today, prenups continue to be an important planning tool for older couples, and are also increasingly used by younger couples looking to protect their future assets.
Uniform Premarital Agreement Act
In 1983, the National Conference of Commissioners on Uniform State Laws drafted the Uniform Premarital Agreement Act (UPAA).
Virginia adopted the UPAA two years later.
The purpose of this act is to make sure that there is national agreement on how prenuptial agreements are enforced in every state.
States use the UPAA to draft laws concerning prenuptial agreements, and judges refer to this agreement to make sure that no prenup is unethical or unconscionable (unfair).
Basic Elements of a Prenup
Virginia Code § 20-148 defines a prenup as an agreement between prospective spouses that begins on the day they get married.
These agreements generally include several basic elements, which all center on the ownership of particular property and assets.
For example, prenups generally list all the property and assets each person owns, and detail each person’s rights to that property should these rights come into question in the future.
A more detailed prenup will also cover any debts each person brings into the marriage, and who will be responsible for them if they split.
Even more thorough prenups will cover not only the couple’s assets before the marriage, but also include provisions for future assets as well.
Finally, some prenups include sections called “sunset clauses,” which scale the division of assets depending on how long the couple stays married.
How Do Prenups Work in Virginia?
While they still hold the general stigma that a wealthy person is trying to keep their money away from their less-successful partner, modern couples are starting to see the benefits having a prenup can have for their relationship down the line.
Typically, one person (usually the wealthier individual) has a lawyer draft the agreement based on the couple’s assets, debts, and post-marital plans.
Then, the other person has their own lawyer review the agreement and make any necessary changes.
After both parties and their lawyers agree that the prenup is fair, they’ll each sign the document and file it away for future reference.
In the event that something in the prenup comes up (such as a divorce or unexpected death) each party should have ready access to the document.
Do note that it’s important for each member of the couple to retain their own lawyer.
If you don’t, the courts may decide that the agreement was created unfairly, and your prenup can be declared invalid.
Should I Get a Prenup?
A prenuptial agreement may not be right for every couple.
Deciding on whether on not you should get a prenup will depend on your assets, your debts, your future plans, and whether you have children from another marriage.
Every couple needs to decide what’s best for their specific situation and relationship.
Two questions couples commonly ask when deciding whether or not to get a prenup are “do I need a prenup if we don’t have any assets” and “what happens if we don’t make a prenup?”
We’ll answer each below.
Do I need a prenup even if I don’t have any assets?
Prenuptial agreements aren’t just for wealthy people.
While prenups help protect the assets that each spouse brings into the marriage, they can also protect assets that are accumulated afterwards.
For instance, let’s say a young businesswoman is still in graduate school when she marries her husband. After a few years, she builds up a successful business. Later, the couple decides to split.
In this situation, the business itself could be put in jeopardy depending on how the state’s laws relate to the division of assets.
Depending on the case, this business might count as marital property, and as a result be susceptible to equitable division during the divorce.
As another example, it’s important to remember that prenups cover debt as well as assets.
If your spouse brings a large amount of debt into the marriage (such as if they took out a loan for a new business venture), a prenup can make sure that you aren’t responsible for that debt if you decide to split up.
When should I get a prenup?
In a nutshell, it’s a good idea to get a prenup if:
- You or your partner have children from a previous relationship, and you want to protect their inheritance.
- You want to prevent an existing or future business from being split in a divorce.
- One or both partners are bringing a large amount of debt into the marriage that doesn’t directly affect the other partner (such as student loans).
- There are certain specific properties or assets you want to protect, or even just keep separate.
- You want to avoid spending a large amount of time and money in litigation if you get divorced.
While there are certainly other reasons that a couple might consider a prenup, these are the most common.
What happens if we don’t make a prenup?
On the other hand, if you are both bringing little to no assets or debt into the marriage, or if the thought of a prenup might cause hurt feelings or suspicion, it may be best to forgo a premarital agreement.
Just remember that if you don’t have a prenuptial agreement, the laws of the state in which you live will decide how to divide your assets.
If you don’t want Virginia to intrude with community property laws or court decisions, you’ll want to go ahead with a prenup.
What Should I Put in My Prenup?
Separate Property and Assets
The whole point of a prenup is to place the division of your assets outside of state guidelines.
For this reason, the most critical section of your prenup will differentiate between each party’s assets both before and after the date of the marriage.
Usually, the agreement will call for assets acquired after the marriage to be split 50/50.
However, you can change this division as long as it remains equitable (“fair”).
For any property that you acquire after marriage, you can decide whether you want to share this property, keep it separate, or do a mix of both (share some and keep some separate.)
One common example of assets covered by prenups are inheritances.
Are they marital property (shared equally by each spouse) or do they belong to the person outlined in the will?
This is a question that can easily be answered by a prenup.
Provisions for Existing Children
If either spouse has children from a previous relationship, they may wish to protect a certain portion of their assets in the interest of their children in the event of a divorce.
A prenuptial agreement can protect these assets from automatically being divided with the other spouse.
This will preserve existing assets for the future inheritance of their children.
A prenup can designate an amount or formula for how much support a spouse will receive in the event of a divorce.
Virginia law allows for parties to totally waive alimony in a prenup. However, a court may refuse to enforce this provision if it leaves one partner unable to support themselves after a divorce.
You should also include details on any debt, especially significant debt, that a spouse is bringing into the marriage. This protects one spouse from taking on the pre-marriage debt from the other spouse.
Other Important Details
For a prenup to be valid and enforceable in court, it must also be:
- Fair and reasonable
- Signed voluntarily (not under duress)
- Signed by both people before a witness (such as an attorney)
- Signed after full disclosure of both parties
As long as you meet all these requirements, the prenuptial agreement will go into effect on the day you get married.
How Much Does a Prenup Cost?
A lot less than you’d expect. In general, there are two ways to make a prenup which will hold up in court:
- Hire a lawyer to draft the agreement for one spouse, then have another lawyer read over the agreement for the other spouse.
- Draft the prenup yourself (or, more commonly, use a template), then have each spouse hire a lawyer to review the agreement.
For simple prenups, you can write the agreement yourself, and then have separate lawyers look over each spouse’s copy.
For more in-depth agreements, you’ll want a lawyer to draft the agreement so that it will have a better chance of holding up in court.
This option takes more time, and, since lawyers often charge by the hour, having a lawyer draft your prenup will cost more.
For a draft made by a lawyer, expect a number in the low thousands. If you just want to hire a pair of lawyers to read it over, you could pay as little as a few hundred dollars.
Avoid “Free” Prenups
The power of your prenuptial agreement is directly proportional to how well it follows state law.
If you draft a prenup from a website offering “free” prenups without hiring a lawyer to look it over, you run a high risk of ending up with an unenforceable prenup.
While it’s fine to use a template you found online, make sure to double check that it follows all state guidelines and is unlikely to be unfair to either you or your future spouse.
Common Questions About Virginia Prenups
Below, we’ll answer a few of the most common questions we receive about drafting prenuptial agreements in Virginia.
Can we still get a prenup after our wedding?
Yes. However, it would be called a “postnuptial agreement” (or “marital agreement”).
Just like a prenup, a postnup is a contract signed by both spouses that spells out their rights and obligations in the event of a divorce.
A postnup is often used when a spouse wants to designate a beneficiary for their estate other than their spouse, or if they have entered into a partnership and want the assets to go to the partner, instead of their spouse.
Marital agreements carry the same requirements as prenups.
Your agreement must be in writing, signed, notarized, and you must make sure it’s equitable to both parties.
Can we update our prenup after we sign it?
Yes. Many couples update their agreement after they’ve been married for a while in order to keep up with changing assets and circumstances.
This commonly occurs when a spouse enters into a business partnership with another person and wants to protect the assets of the business from the other spouse (or the spouse from the risk involved in the business).
Other significant life events could also prompt a couple to revisit their prenup.
As long as you both agree, you can update your prenup as often as you want. You can even cancel it, as long as both parties agree.
Can we use a prenup to determine child custody?
No. A prenup only has to do with property, not children.
You should avoid including any language about custody of children or child support in your prenuptial agreement.
Can I include my pets in a prenup?
Yes. If you owned the pet before marriage, you can use your prenup to designate who the pet will go to if you split up.
This is because pets are technically property under Virginia law, and subject to the normal rules surrounding the division of assets.
However, for a pet acquired after marriage, the court will usually award the pet to the person who was most involved in caring for it.
What about cohabitating couples?
More and more couples are choosing to acquire assets and have children without getting married.
When these couples decide to part ways, they must negotiate who the assets go to and how they’ll handle the children’s inheritance.
For this reason, cohabitating couples may decide to draft a cohabitation agreement, which is similar to a prenuptial agreement.
A cohabitation agreement is also a legally binding contract and should be reviewed by a lawyer.
Essentially, this cohabitation agreement is a kind of prenup for couples who don’t want to go through all the hoops to get legally married.
While a separation would be incredibly complicated without an agreement (since the couple isn’t “legally” together), having a cohabitation agreement in place can save a good deal of time and money in the event of a split.
At their most basic level, prenups must follow all Virginia laws and be completely fair and equitable to both parties.
There are several situations which could result in an unenforceable prenup, all of which relate to breaking one of these two basic requirements.
For example, if a court finds the marriage to be void because of bigamy or incest, the couple’s prenup will also be void.
Similarly, if a marriage is annulled due to non-consummation, fraud, or a similar circumstance, the prenup will be enforceable only to the extent that it avoids unfairness to either spouse.
For example, if you hide a large amount of debt from your spouse, then a clause in your prenup which says that all debt will be split 50/50 may be unenforceable.
Prenuptial agreements are becoming more and more common, especially in the event of a second marriage of if one spouse is bringing debt into the marriage.
Many people see prenups as an important step in planning for marriage. Most importantly, prenups are legally binding contracts which follow a very specific set of rules.
For this reason, you should always have a lawyer to either draft your prenup or look over it to make sure it’s fair and valid.