General Guide to Premarital Agreements in Virginia

What is a Premarital Agreement?

A premarital agreement is also known as a “prenuptial agreement” or a “prenup” for short. A premarital agreement is a contract between a couple who enters into it before their marriage, and which specifies what each person's property and support rights will be after the marriage and in the event of a divorce.

What can be Included in a Premarital Agreement?

Virginia Code Section § 20-150 defines what parties can include in a premarital agreement. It allows for the parties to include (a) the rights and obligations of each party to property; (b) each party's right to buy, sell, use, transfer, exchange, lease, encumber, dispose of, or otherwise manage and control property; (c) disposition of property upon separation, divorce, or death; (d) spousal support; (e) making a will or trust in order to carry out the terms of the premarital agreement; (f) rights to and disposition of death benefit from a life insurance policy; (g) what law will apply in interpretation of the premarital agreement; and (h) any other personal rights and obligations, so long as they are not illegal or contrary to public policy.

The parties can include in the premarital agreement provisions concerning custody and visitation; however, it is possible that the court may not enforce it at the time of divorce. This is because, the courts decide custody issues based of what is in the child's best interest at the time the court is faced with making a custody decision, and not based on an agreement that the couple signed some time ago (which in some cases can be years, possibly even before the child or children's birth).

Why have a Premarital Agreement?

Premarital agreements are not just for rich people. Regardless of the extent of the assets owned by each party before the marriage, a premarital agreement can reduce the stress and contested nature of a divorce. Majority of divorce cases are contested. Termination of the parties' marriage alone is an emotional process. The added layer of disputes as to how assets and debt should be divided or how spousal support should be handled makes the process even more stressful and exhausting. Therefore, every couple should consider having a premarital agreement.

Some of the common reasons why people may want to enter into a premarital agreement, include:

• Where both parties have acquired a significant amount of assets before the marriage, and they want to keep each of their assets separate;
• Where one party has acquired a significant amount of assets before the marriage and wants to keep it separate;
• Where parties want to define what assets will be separate and what will be marital in the event of a divorce;
• Where the parties want to address how spousal support will be handled in the event of a divorce, including whether both parties waive spousal support, or spousal support will be paid based on specific terms (which can include the amount, duration, and triggering events).

Depending on the facts of the case, the court may carefully look at the premarital agreement when deciding its validity. The premarital agreement must be well drafted, and the parties should also follow proper procedure before entering into the premarital agreement. For example, it should be signed well in advance of the marriage. Both parties should also have their own separate lawyers to negotiate and review the agreement.

At Raheen Family Law, we have the experience to help you negotiate and draft a premarital agreement and to help guide you through the process. Contact us today to schedule a consultation.