Is a Virginia Prenuptial Agreement Right for Me?

Prenuptial agreements in Virginia require careful planning. Honesty and openness is important as you discuss your plans with your future spouse.

Last updated on October 22nd, 2018

What is a Virginia Prenuptial Agreement?

If you and your significant other are planning on getting married or are currently engaged, then you may want to consider drafting a Virginia prenuptial agreement. A Virginia prenuptial agreement is an agreement between two prospective spouses made in contemplation of marriage and to be effective upon marriage. [1]

In other words a prenuptial agreement is a contract between two people with the intent to marry that deals with the arrangement of property and other personal assets in the event of divorce. [2] Also called a premarital agreement or prenup, a prenuptial agreement serves to protect the interests and assets of couple’s contemplating marriage.

Should my Spouse and I Draft a Virginia Prenuptial Agreement?

Any couple thinking about getting married can enter into a prenuptial agreement. If you are planning on getting married and currently have any property or financial assets, then you could likely benefit from a prenuptial agreement.

Prenuptial agreements are not only used by the wealthy. Couples from any income group can create a prenuptial agreement. However, before creating a prenuptial agreement it is important to weigh both the advantages and disadvantages in order to determine if a prenup is right for you.

What are the Advantages of a Prenuptial Agreement?

First, when contemplating marriage couples must realize that roughly half of all marriages in the United States end in divorce. While this statistic is unsettling, couples contemplating marriage need to realize that divorce is a long, tiresome, and expensive process.

Without a Virginia prenuptial agreement, property and other assets are divided by the judge according to Virginia’s laws. The key benefit of a prenuptial agreement is that this document can ease the burdens of traditional divorce proceedings. The benefits of a prenuptial agreement are:

A Virginia Prenuptial Agreement Can Save You Money

A Virginia prenuptial agreement protects the financial and property interests of both you and your significant other in the event of divorce. Instead of suffering from timely and costly divorce proceedings, the creation of a Virginia prenuptial agreement allows couples to divide current and future assets before they get married.

This is particularly important if a spouse has children from a previous relationship, owns an interest in a business or other shared property. All income earned and all appreciation of property during a marriage can be considered marital property. In Virginia, all marital property is subject to equitable distribution and a former spouse could end up owning a part of your family business that he or she knows nothing about.

An additional consideration is that all debts incurred as part of the marriage are the debts of both spouses. A prenuptial agreement is a great way to protect spouses from owing unwanted debts or having an ex meddling in unintended parts of your finances.

A Virginia Prenuptial Agreement Provides Couples Flexibility 

One of the huge benefits of a Virginia prenuptial agreement is that you have very few limits as to what you can include in the document. The couple is given substantial flexibility to divide their property and other assets as they see fit.

The flexibility of a prenuptial agreement allows couples to include how they want to handle spousal support and their will and estate in the event of their death. The flexibility of this document even allows couples to regulate other aspects beneficial to their marriage.

A Virginia Prenuptial Agreement Prevents Surprises 

Divorce proceedings have the potential to be unpredictable. This is especially true when it comes time to divide property. Prenuptial agreements protect against surprises that occur during divorce proceedings.

By creating a prenuptial agreement, you and your spouse have a better idea about the ownership of property and other assets at the time of divorce.  Ultimately, this document prevents you from being caught off guard during divorce proceedings.

A Virginia Prenuptial Agreement Prevents Future Conflict

One of the biggest sources of conflict in divorce proceedings is the division of property. A Virginia prenuptial agreement can prevent some of the conflict of divorce. It does this by clarifying ownership of property at the beginning of the marriage.

What are the Disadvantages of a Virginia Prenuptial Agreement?

While a Virginia prenuptial agreement has many benefits that can protect your future interests, there are some negative aspects that you should consider before making a prenup. The obvious setback of a prenuptial agreement is that it can place a temporary strain on your relationship. By creating a prenuptial agreement you are realistically addressing the fact that relationships fail which some people construe negatively.

The other key disadvantage of a Virginia prenuptial agreement is that in the event of divorce, a judge still has discretion over the agreement. Even if you go through the effort of creating a prenuptial agreement a judge still has to evaluate the reasonableness and validity of the agreement. For example, an agreement that is manifestly unfair, or that was entered without the benefit of legal counsel can be held invalid.

What is Included in a Virginia Prenuptial Agreement?

Prenuptial agreements cover a wide variety of subject matter. As long as the couples do not include anything against the state’s public policy, couples have enormous flexibility for what they can include.

Division of Current Property

Property means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings. [3] If you currently own property or other financial assets then these items can be protected by creating a prenuptial agreement. A Virginia prenuptial agreement allows you to specify how you want to divide property in the event of divorce. [4]

Division of Future Property

A Virginia prenuptial agreement allows you to determine how you wish to divide property you will obtain in the future. [5] Throughout your marriage, you and your spouse will likely acquire additional property and financial assets. This can include your future home, cars, stocks and bonds, retirement plans, life insurance policies, etc.

In the event you and your spouse divorce the ownership of these items will likely be in dispute. However, the creation of a prenuptial agreement provides you the ability to determine how you are going to divide these items in the event of a divorce. [6]

Distribution of Debt 

One of the major advantages of a Virginia prenuptial agreement is that it allows couples to fairly distribute any debt that the parties have acquired. [7] Millions of Americans are burdened by student loan and credit card debt. During your marriage you may also obtain a mortgage or other types of loans.

When drafting a Virginia prenuptial agreement, you have the ability to ensure that you are not responsible for your significant other’s individual debt obligations. A Virginia prenuptial agreement provides fair debt distribution to both parties.

Spousal Support

A prenuptial agreement can serve the purpose of determining spousal support in the event of divorce. [8] Spousal support is also more commonly called alimony. The determination of spousal support is subject to Virginia law. However, spousal support can be expensive.

By creating a prenuptial agreement, spouses have the ability to waive spousal support in the event of divorce. [9] Spouses also have the ability to pre-determine their spousal support in the event of divorce.

Wills or Trusts

A prenuptial agreement has the ability to serve as a will [10]. A will is a document that determines how an individual’s estate will be distributed in the event of their death. A couple has the ability to include how to distribute their property and other possessions in the event of their death by including it in their prenuptial agreement.

While a formal will is usually preferred, a couple can provide guidance for how they want to handle the distribution of their estate in the event of death by drafting a prenuptial agreement.

Lifestyle Clauses

Lifestyle clauses are non-financial agreements reached by the couple in their prenuptial agreement. [11] Life style clauses are a recent development that place contractual obligations or requirements upon the other spouse. By placing a lifestyle clause in your prenuptial agreement you have the ability to ensure a non-financial obligation on your spouse.

What can be included in a Lifestyle Clause?

Like other aspects of the prenuptial agreement, couples have a great range of flexibility when creating lifestyle clauses. Lifestyle clauses can be used to regulate and discourage harmful behavior during the marriage. Lifestyle clauses have been used to discourage heavy drinking, gambling, or even drastic spending.

However, lifestyle clauses are generally not enforceable if they are highly frivolous. For example, a lifestyle clause that imposes a weight restriction on the other spouse will likely not be enforceable.

In order to be enforceable, life style clauses must be both meaningful and serious to the other spouse. For example, a lifestyle clause that specifies what religion your child will be raised as will likely be enforceable.

Can Child Support be included in a Virginia Prenuptial Agreement?

Spouses cannot waive child support in a prenuptial agreement. Waiving child support would likely be against Virginia’s public policy. [12] The reason is that parents have a duty to provide for their children and cannot avoid this duty by contract. Thus, any agreement that would waive child support would likely not be enforceable. However, spouses may include a provision on how they would like the court to rule on child support.

Will a Court Enforce a Virginia Prenuptial Agreement?

Under Virginia law, a prenuptial agreement is a fully enforceable contract. [13]  A prenuptial agreement is a valid contract even without consideration. [14] However, a prenuptial agreement must be signed and completed before the couple is married. Upon marriage, the prenuptial agreement becomes valid. [15]

When is a Virginia Prenuptial Agreement not Enforceable?

Under some circumstances, a prenuptial agreement is not enforceable. A prenuptial agreement is unenforceable if:

  • Both the agreement was not reached and not signed before the date of marriage;
  • The person did not enter into the prenuptial agreement voluntarily;
  • The agreement was substantially unfair to one of the parties;
  • One of the parties disclosures were not fair and reasonable;
  • The agreement will lead to an inequitable result in the event of divorce. [16]

Once my Spouse and I are Married can the Prenuptial Agreement be Amended?

A Virginia prenuptial agreement can be amended once you are married. In order for the amendment to be valid, the amended agreement must be signed by both parties. [17] The prenuptial agreement can also be revoked after marriage upon agreement of both you and your spouse. [18]

What happens if My Spouse and I Do Not Draft a Prenuptial Agreement Before the Wedding ?

Under Virginia law, a prenuptial agreement is only enforceable if it is both drafted and signed before the wedding. [19] In the event that you and your spouse are unable to draft a prenuptial agreement before you are married, you still have option of drafting a post nuptial agreement.

A post nuptial agreement is similar to a prenuptial agreement where both documents handle the division of property and obligations of the parties in the event of divorce. However, a post nuptial agreement is drafted after you and your spouse are already married.

Conclusion

While discussing a prenuptial agreement with your future spouse may be a difficult conversation, a Virginia prenuptial agreement has the ability to protect your property and financial interests in the event of divorce. In order to determine if a Virginia prenuptial agreement is right for you, you should first discuss both the advantages and disadvantages with your future spouse.

Before entering into a Virginia prenuptial agreement it is important that you are honest and transparent about your property, assets, and debt with your future spouse. By being both honest and transparent with your future spouse, you can ensure that the prenuptial agreement is both fair and reasonable to both parties.

Finally, if you and your future spouse decide to create a Virginia prenuptial agreement, each party should be represented by separate independent counsel. This ensures that both you and your future spouse’s best interests are protected.

Hiring an experienced and competent attorney is recommended. Ultimately, having an experienced attorney by your side can best serve to protect the things most important to you.


[1] Va. Code § 20-148

[2] Id.

[3] Id.

[4] Va. Code § 20-150

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Va. Code § 20-149

[14] Id.

[15] Id.

[16] Va. Code § 20-151

[17] Va. Code § 20-153

[18] Id.

[19] Va. Code § 20-149

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