FAQ about Prenuptial Agreements in Virginia
As we pass Memorial Day and inch closer to the summer, we all look forward to warm weather, trips to the beach, and hopefully a vacation. This weekend also marks the unofficial beginning of wedding season. A joyous time indeed but, as a family law attorney, this is also when I start receiving many questions about prenuptial agreements.
As ominous as that may sound, I can personally vouch for a 100% success rate in negotiating prenuptial agreements which means that all my clients celebrated a wonderful wedding and rode off into the sunset ready to embark on a much-needed honeymoon. However, that doesn’t mean that there aren’t traps and pitfalls to avoid along the way. The following are some frequently asked questions I have received throughout the years, as well as a few tips towards successfully navigating the negotiation process:
1. My spouse wants a prenup. What does this mean?
Prenuptial Agreements are governed by Va. Code §20-147 through §20-154 (also referred to as “Premarital” Agreements). The law states that they are agreements for the purposes of settling the rights of prospective spouses and are effective upon marriage.
In practice, a Prenuptial Agreement is typically written for couples who want to decide their marital rights without application of Virginia law. Most often, the terms are related to property rights and the potential future rights to spousal support.
2. Can one attorney represent both parties to the agreement?
No, because an attorney may only advise one party to the agreement. Typically, this question is asked as a means of saving money. Understandable, weddings cost plenty! One way to save money is for one party to hire an attorney to draft the agreement while the other waits to consult with a separate attorney afterwards. While there may still be some negotiating and editing to be done afterwards, most of the terms may be agreeable and so the amount of work needed by the second attorney would be substantially less.
3. Do I need a prenup if I don’t have many assets?
While Prenuptial Agreements are often used to protect assets already in existence at the time of the marriage, they are also valuable for protecting assets accumulated afterwards. While someone may have very little at the time of the marriage because he or she just graduated school or is still working in an entry-level job, a Prenuptial Agreement can protect future earnings, business-interests, retirement assets, inheritances, and gifts. It can also protect against paying spousal support or hidden liabilities accumulated by the other spouse.
4. Can we change the terms of a Prenuptial Agreement?
Yes, and couples often do agree to modify the terms of a Prenuptial Agreement after significant life events. Sometimes this is not only desirable, but necessary as in the case of one spouse leaving the work force for an extended period to care for the parties’ children. To modify the terms of a Prenuptial Agreement, both parties will have to enter into a new agreement with updated terms, executed with the same formalities as the first. A couple can also decide to terminate the Prenuptial Agreement through the same steps.
5. Is it possible to determine custody and child support in a Prenuptial Agreement?
No, custody and child support issues may not be determined prior to the parties’ marriage.
6. Can a court disregard the terms of our Prenuptial Agreement?
In general, no. The terms of a Prenuptial Agreement are contractual in nature and the Courts of Virginia are notoriously strict in adhering to the terms of a marital contract. However, there are some exceptions to that rule:
- A Prenuptial Agreement, or any contract, can be set aside if it is found to be unenforceable. An agreement can be found to be unenforceable if: (i) one of the parties did not enter into the agreement voluntarily; or (ii) the agreement was unconscionable at the time of its execution.
- The terms are related to custody or support of a child.
- A court can set aside terms that leave a spouse in “necessitous circumstances” and a “public charge” to the State. See Sims v. Sims, 55 Va. App 340 (2009). Such findings are usually applicable to spousal support waivers when one party clearly has much greater earning capacity while the other does not have the ability to support him or herself without public assistance.
7. How expensive are Prenuptial Agreements?
This question depends on many variables. Most importantly, the cost of a Prenuptial Agreement depends on the amount of negotiating that occurs prior to execution. Since nearly all family law attorneys bill by the hour, the time spent on drafting, negotiating, and rewriting a Prenuptial Agreement directly impacts the overall cost. When both parties come to the attorneys with something in mind and are generally agreeable, a Prenuptial Agreement is relatively inexpensive. Another key factor is the hourly cost of your attorney. As with all legal matters, you would be prudent to find an attorney that suits your financial means.
8. Can we utilize Collaborative Practice for preparing a Prenuptial Agreement?
Absolutely, and I highly recommend Collaborative Practice for the preparation of Prenuptial Agreements. Collaborative Practice is tremendously effective at improving communications and settling matters amicably. All Collaborative Divorce practitioners are trained to work with each other for the joint goals of the parties, which suits the negotiation of a Prenuptial Agreement perfectly since the joint goal of the parties is to reach the wedding date as a happy couple!
9. Should I get a Prenuptial Agreement?
This question depends on the unique circumstances of every relationship. Sometimes there is pressure from other family members that serves as the impetus for a Prenuptial Agreement. Other times, parties feel that they have worked hard to establish their own individual careers and don’t want that to be impacted by a potential split. Some people don’t want a potential future divorce to interfere with the management of a business or partnership. However, in every relationship, these financial decisions have to be weighed against the emotional and personal needs of both parties and can never be viewed in a vacuum. Nevertheless, if you follow some of the tips included in this article, you will be on your way to a joyous wedding and the beginning of a new chapter of your lives. I say that confidently because, in my experience, a Prenuptial Agreement has never prevented a happy wedding and I do not expect this record to ever be tarnished.