Understanding a Prenuptial Agreement in Virginia
In simple terms, a prenuptial agreement is a contract between two people who are preparing to marry. Often called a "pre-nup", these agreements cover legal and financial matters related to what will happen if you decide to end your marriage and seek a divorce in the future.
Like most states, Virginia recognizes premarital agreements that meet certain substantive and procedural requirements. Even if a prenuptial agreement is valid under Virginia law , it doesn’t mean it cannot contain especially burdensome terms and still is likely to be honored by a Virginia court. Legal prenuptial agreements are contracts, but they are contracts with a distinct character. Not only do they have to satisfy the usual requirements for a contract under Virginia law, but also they must address "all or some" of a variety of specified circumstances that could arise between parties.
Benefits of Making a Prenup With a Template
A Virginia prenup template is a premade legal agreement that you can fill out according to your state of residence. Whether or not you need an attorney to help, you can use one of these templates to focus your agreement on the things that matter to you. However, reading a bit of information about the process before you use a template is important.
A Virginia prenuptial agreement template can help you save time if you’re in a hurry. You may be getting married on short notice—for instance, you may need to marry for tax benefits, insurance coverage or other benefits. Your prenuptial agreement might have little to do with the actual prenup that you create. In this case, a template can help you draft an agreement that you happen to have completed before your wedding.
An attorney can always explain any limitations of your Virginia premarital agreement template. Some templates can ask you to add things that aren’t enforceable in your state. An attorney can explain any holes in the template and help you create a viable legal document.
Your Virginia prenuptial agreement template is only as good as the integrity of the person who’s using it. If you’re using the wrong template, you could run into the effects of unintended consequences. Your attorney can help you vet premarital agreement templates for your state.
Virginia considers prenuptial agreements to be similar to contracts. This means that they are subject to review. For some agreements, you won’t be able to make changes to your contract, but you can supplement it. An attorney can help you understand whether or not you’re in a position where you’re able to make changes to your prenup.
You may be offered a non-standard Virginia prenuptial agreement template. One example of this type of document is a separations and property agreement. These agreement templates allow you and your partner to agree to divide certain property before you get married. You can still create a prenuptial agreement during your marriage if you want to split property.
A prenuptial agreement gives you both the ability to get out of a bad marriage—but this doesn’t mean that your template is necessary. If you and your partner don’t plan to get married or are already married when you fill it out, it’s not a legal obligation for you to fill out an agreement.
Your Virginia prenuptial agreement template is not a magic bullet. If you and your partner don’t both sign your agreement, it will never be valid. If your signature was coerced, your agreement can be voided in a court of law.
Some prenuptial agreement templates are simply not worth the price that you pay for them. If you’re not sure whether your relationship is destined to end in divorce or not, it’s hard to determine how to handle your money matters. In such cases, working with an attorney can often yield better results.
Components of a Virginia Prenup Template
Below are some key elements which should be included in a Virginia prenuptial agreement template:
Assets and liabilities. Your prenuptial agreement should fully disclose each party’s assets and liabilities, including bank accounts, real estate, investment accounts, businesses and credit cards and loans.
Maintenance. Your prenuptial agreement may state whether spousal support (divorce maintenance) will or will not be an issue in the future. Some include a sliding scale that increases the amount of maintenance as the length of the marriage increases.
Estate distribution. Your prenuptial agreement should indicate what will happen to your assets in the event that you pass, including your will, life insurance and retirement accounts.
Children. Your prenuptial agreement may not address support or custody of minor children. This is usually in violation of Virginia law and is not permitted.
Debts created after marriage. Only a portion of your debt will be addressed in your prenuptial agreement. Again, Virginia law requires that you share all your assets and debts with your spouse. It is important that you keep good records of what is acquired after your marriage to protect yourself.
How to Personalize Your Virginia Prenup Template
While a Virginia prenuptial agreement template is a good starting point, the actual document must be tailored to the unique needs of the parties. To begin customizing an agreement, think about the specific terms you want to include. Some common terms that couples include in their agreements are as follows:
The terms will vary based on each couple’s individual circumstances and preferences. It’s important to note that Virginia law will not enforce any term that is unlawful or against public policy. If you are concerned that a term might not be enforceable, seek guidance from your legal counsel before including it.
It’s also wise to seek legal advice about terms that will not be included in the agreement. For example, Virginia law prohibits entering into a prenuptial agreement that adversely affects the obligation of either spouse to support or care for children of the marriage. If you have an existing support order for a child from a previous relationship, be certain that you are not adversely affecting your ability to meet the provisions of that order.
It’s often helpful to consider the process for making decisions about your future. For example, should each spouse sign off on all decisions relating to major purchases, or should the agreement permit one spouse’s decision to control? A prenup can outline the ways in which you and your future spouse will make major decisions, such as those concerning children and finances, so major disputes can potentially be avoided.
Decisions about your finances can also be part of the agreement. When discussing financial issues, you may want to discuss how debts and assets will be defined in the event of a divorce. Like other types of dispute, if you can agree ahead of time, you will be less likely to spend valuable time and resources on litigation.
Many people also include terms regarding additional property acquired during the marriage. One simple way to address this is to agree that anything acquired by one spouse or the other (such as through inheritance) will remain that spouse’s separate property. If you and your future spouse want additional flexibility, such as the ability to make decisions about assets acquired during the marriage, you might want to simply address the times when the separation of property would apply.
While it is possible to use a form agreement as-is, it is vital to get input from legal counsel before finalizing the terms. The agreement must comply with Virginia law in order to be enforceable. Only a Virginia attorney can review the terms of your agreement and confirm that they comply with the law.
Requirements for the Validity of a VA Prenup
For a Virginia prenuptial agreement to be enforceable, it must meet several legal requirements. First, both parties must voluntarily agree to the terms of the agreement. A prenuptial agreement is not valid if one party was forced or coerced into signing it. To avoid this problem, both spouses should have their own independent legal counsel review and explain the agreement to them prior to signing. This will help ensure that the parties understand the legal consequences of the agreement and are entering into it of their own free will.
Second, the agreement must be fair. While this is a subjective test, courts will generally find an agreement to be fair if both parties’ disclosures were reasonable and accurate given the circumstances. Additionally, courts may consider the financial circumstances of both parties at the time the agreement was executed to determine if the agreement was outrageously unfair to one party . This subjective fairness test can lead to inconsistent results and is the reason that the Virginia legislature codified the "fairness" requirement of an agreement in Virginia Code § 20-149.1.
Third, the provisions must be reasonable. While Virginia law does not set forth an explicit definition of what is "reasonable," provisions that appear unethical or unreasonable will generally not be upheld by a court. Virginia law will not enforce a provision that leaves one party penniless or one spouse with sole control over all marital assets. Finally, the agreement must be signed and notarized by both parties prior to marriage. Virginia law requires that the agreement be in writing and signed by both parties in order to be enforceable. The parties must also have the agreement notarized in accordance with Virginia law.
Delving into Errors You Should Avoid
- Failure to fully disclose your assets and your debts. A failure to do so will affect the validity of a Prenuptial Agreement. This is one of the most common mistakes people make. Everyone does not operate with the same desire to make a full disclosure. While this may not be a very romantic strategy to adopt, be candid with your spouse about what assets and liabilities you have. Omitting assets on your financial disclosure form will not be a wise decision.
- Discuss important provisions of the agreement. When parties execute an agreement, only they should know what it says. Therefore, do not rush into getting your agreement signed just because your wedding date is fast approaching. One of the worst blunders could be telling other parties what is in your agreement. Today, social media sources (i.e., Facebook, Instagram, etc.) are rampant. You may be tempted to share your good news but do not! Make sure that you mention this to your spouse too.
- Sign your agreement without your attorney reviewing the final version. This perhaps tops the list as the biggest mistake to make when entering into a Prenuptial Agreement. Make sure to have your attorney make the revisions. Be certain your attorney thoroughly reads through the agreement before you sign it. A good attorney will carefully check for errors that may have been made by the drafting attorney.
- Wait until just before the ceremony to sign your agreement. A common pitfall for people who are contracting with a spouse in Virginia for the first time. The thought of planning a wedding and meeting deadlines can be overwhelming. However, signing an agreement just before the ceremony is detrimental especially when children are involved. Parents generally have more to lose if you wait. It is much harder to sign a Prenuptial Agreement after the marriage than before.
Obtaining Legal Counsel Before Signing
It is worth the expense to have an attorney review your Virginia prenuptial agreement. A qualified attorney will likely catch potential problems that you have not. It is also possible that you and your intended spouse are agreeing on certain things because of a misunderstanding, or based on false information. We see it all the time.
Additionally, an attorney should advise you about some other factors that could be relevant to the agreement, such as:
• Defenses to and challenges on enforceability
• Unfulfilled obligations and the consequences of those unfulfilled obligations
• Effect on third parties
• Maintaining an independent , separate identity with respect to debt and credit
• How changing circumstances might affect the prenuptial agreement
• Issues for estate planning
• Disputes concerning how the terms of the prenuptial agreement are carried out and whether to do it in court
The most important thing to understand is that an attorney should be able to give you a better understanding of the specific legal requirements that must be satisfied before a prenuptial agreement will be upheld by a Virginia court.