Last updated on July 18th, 2019
If you’re getting married in Virginia, there’s no excuse for not drafting at least a basic prenuptial agreement.
Prenups are pre-marriage contracts that clarify each spouse’s property rights and responsibilities during their marriage.
By creating a prenup, you and your new spouse can prepare for complicated legal questions that sometimes arise for married couples.
Importantly, prenups apply to far more than how courts divide property during a divorce.
They can also protect your children’s inheritance, solidify your spouse’s claims to your joint property after your death, and rectify several other common legal problems.
In this article, we’ll go over 7 essential elements you should include in your Virginia prenup.
We’ll also talk about a few things that you specifically shouldn’t include in your prenup, as well as the reasons why.
7 Things to Include in Your Virginia Prenup
1) A Distinction Between Separate and Marital Property
During a contested divorce, the judge will determine whether all property owned by a couple is separate or marital property.
Separate property is exactly what it sounds like – property owned separately by one party in a marriage.
Generally, the ownership of separate property won’t change during a divorce.
Marital property, on the other hand, is property owned by both parties in a marriage, and thus will need to be divided at the end of a marriage.
Making the initial determination of whether property is separate or marital can be a major point of contention.
For many couples, a major reason for making a prenup is to set out in writing whether certain property counts as marital or separate.
The obvious reason for deciding this issue early is to have one less thing to fight about in court. However, this distinction also has other purposes as well.
For example, let’s say you own a 25% share in your family business.
If you get married, you will no longer individually own this share. Instead, you and your spouse will jointly own 25% of the family business.
In this scenario, your wife would have control over (and responsibility for) the 25% share of your business.
Depending on how your business is set up, this could be either a good or a bad thing.
For this reason, it can be helpful to clarify any possible ownership issues in a prenup before you say your vows.
Essentially, this will mean listing what property is yours individually, and which property counts as marital property (i.e. “shared”).
In the event of a divorce, you and your spouse will both keep your separate property, and the marital property will be split up equitably between the two of you.
2) Savings, Investments, and Retirement Benefits
In a similar fashion to the first point above, it’s also especially important to account for any future assets and sources of income in your prenup.
By specifying who owns the profits or increases in value from these kinds of property, you can avoid unexpected complications down the line.
For example, under Virginia law, it is possible for your spouse to claim a percentage of each of these sources of income during a divorce.
Similarly, securing these assets for your spouse can also help you better provide for them in their old age.
This strategy is especially effective when combined with other estate planning documents.
3) Estate Planning, Family Property, and Inheritance Information
While we’re on this subject, you should know that Virginia inheritance law can be very complicated, especially if you have children from another relationship.
In fact, one of the original purposes of prenups under Virginia law was to plan for distribution of property on the death of a spouse.
This includes property that you would like to remain with your spouse and property that you would like to go to your children.
However, keep in mind that a prenup is only one small part of a thorough estate plan.
Your prenup only supplements your will and any other estate planning documents you and your spouse have drafted previously.
A prenup is not sufficient to act as a will by itself.
For that, you will almost certainly want to speak to an experienced Virginia estate planning lawyer.
4) Debt Allocation Information
If you or your spouse have debts, or know that you will have debts, you’ll want to lay them all out in the prenup.
This is because some debts become marital property after your wedding, while others remain separate property.
Similarly to having a loved one co-sign on a mortgage or car loan, this can be a good or bad thing depending on the situation.
For example, say that your partner helped support you as you worked your way through medical school (and accrued the associated debt).
Should a judge (or creditor) consider this debt separate or marital? Is your spouse responsible for this debt if you die unexpectedly?
Dealing with both current debts and future debts in your prenup will allow you to avoid thorny questions such as these in the event something unexpected happens.
Keep in mind that, in Virginia, you are usually not responsible for your spouse’s debts in the event of their death.
However, there are a few exceptions that you’ll want to account for in your prenup, such as joint debt and certain types of medical bills.
5) An Outline for Specific Financial Obligations
While somewhat uncommon, some couples also choose to take this idea one step further by outlining specific financial obligations they will take on in the marriage.
For example, deciding who will pay for the house or family car can help some couples allocate their resources more effectively.
While this is more of a plan than a legally-binding contract, it can be useful if one spouse simply does not fulfill an obligation during the marriage.
For example, if one spouse states that they will buy the other a house using their inheritance money, and then goes back on this promise, it’s easier to bring up during the divorce if you have the original obligation in writing.
Similarly, if one spouse is planning to take on a significant financial risk sometime in the near future (such as starting a business), it can be helpful for both spouses to lay out their plans for how they will deal with this risk financially.
6) Alimony Information
As another important consideration, the Virginia Code places a few different restrictions on how prenups can handle future spousal support (i.e. “alimony”) payments.
Specifically, the Virginia Code notes that a prenup can establish the terms of future spousal support payments. However, those terms must be “equitable” (“fair”).
Additionally, you should note that the alimony terms in your prenup aren’t guaranteed to stand up in court during certain legal proceedings.
While the judge may take your prenup into account, Virginia judges have considerable discretion in deciding such cases.
For this reason, it’s a good idea to include alimony information in your prenup.
However, you should know that such a section may not hold up under certain circumstances.
7) Separation Considerations
Finally, you should also include a section which outlines your responsibilities and considerations after a potential separation.
As one very common example, many prenups include a section which notes who will have access to the marital home during divorce proceedings.
Other separation considerations, such as who gets the family vehicles or who keeps the family pet, are also common.
Things You Shouldn’t Include in Your Prenup
There are also a few things you should not include on your prenup. In general, this is because a Virginia court will never enforce any of these sections.
Child Custody and Child Support Agreements
Under Virginia law, legally binding child custody decisions may only be determined through the family court system.
In a child custody case following a divorce, a family court judge will look at the specific circumstances of your particular case at the time of your separation.
Put another way, they will not consider the terms outlined in your prenuptial agreement to be legally binding.
Similarly, prenuptial agreements involving child support are effectively meaningless.
This is because child support is a legal right of the child, not either parent.
Virginia law enables one or both parties to modify or even waive their right to alimony through a prenup.
However, if you or your partner wish to totally waive your right to future spousal support, you should consult with an attorney first to ensure the agreement will be enforceable.
If the agreement seems to obviously disadvantage one party, the judge may decide that the whole contract is unenforceable.
For this reason, you should think carefully before making a prenup which waives a spouse’s alimony rights.
Finally, a prenup isn’t the place to lay out minor domestic affairs.
For example, provisions on where you’ll go on vacation are almost certainly unenforceable.
While they can be complicated, prenups can be valuable in any marriage.
If you aren’t sure what your prenup should include, you should speak with an experienced Virginia family lawyer.
By doing so, you can potentially save yourself large sums of money and months of litigation in the future.