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VIRGINIA
PRENUPTIAL AGREEMENTS
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Virginia Prenuptial Agreements (also called “premarital agreements” or “prenups”) are written contracts that couples enter into prior to marriage. Prenups in Virginia are expressly allowed by the Virginia Premarital Agreement Act (Va. Code §§20-147 through 20-155), which sets forth the requirements for entering into a legally enforceable Virginia Prenuptial Agreement, including the content that can and cannot be included in a premarital contract.
The fact that the Commonwealth of Virginia has embraced prenuptial agreements by codifying the contractual requirements in the Virginia Premarital Agreement Act makes Virginia a favorable jurisdiction to ensure a binding and enforceable prenup.
Importantly, you must have sufficient “nexus” to Virginia to justify having a Virginia prenuptial agreement (for example, one party is a Virginia resident, owns property in Virginia, you are getting married in Virginia).
The terms of a prenup agreement are very personal. There is not a “one size fits all” standard Virginia prenuptial agreement template that will work for every couple. Every couple getting married is unique, with different goals and needs.
DID YOU KNOW? A Virginia premarital agreement is a private document between a marrying couple, and no one else. A Virginia prenup does not get filed with any local, state or federal agency, and couples often choose to keep the terms confidential.
WHAT TERMS CAN BE IN A VIRGINIA PRENUPTIAL AGREEMENT?
When a Virginia couple gets married without a written premarital agreement, they have basically agreed to have their rights determined by a default set of marital and divorce laws that they might not understand, and which may not suit their needs and goals.
In contrast, a written prenuptial agreement signed before marriage allows spouses to take control of their destiny in the unfortunate event of separation and divorce by pre-negotiating the path of least resistance and what is in the best interest for both parties.
How do couples decide what to put in a Virginia Prenup?
From a big-picture perspective, the content and terms of Virginia prenups that are enforceable under the Virginia Premarital Agreement Act are generally driven by a couple’s desire to “opt out” of certain default Virginia laws that would otherwise determine their marital rights, but which laws might lead to fighting in the event of a divorce.
So, Virginia premarital agreements are essentially written to allow a couple to agree on marital rights and divorce terms that supersede and replace those Virginia divorce laws that often force couples to lawyer up and battle it out in court.
Below are a few examples of terms commonly found in Virginia Premarital Agreements.
KEEPING SEPARATE PROPERTY SEPARATE
A popular use of a Virginia prenuptial agreement is to keep each spouse’s Separate Property separate during the marriage, completely free from any marital claims in the event the marriage is dissolved. When couples decide to keep their respective Separate Property separate, it typically includes separate property owned prior to marriage, and separate property purchased or inherited during the marriage. A couple can also choose to keep income and debt resulting from Separate Property separate.
§ 20-150(1) of the Virginia Premarital Agreement Act expressly allows parties to agree to what rights they have to their Separate Property and their jointly-owned Marital Property (discussed below).
HOW TO SPLIT MARITAL PROPERTY
In Virginia, spouses who do not have a written prenuptial agreement have their marital property divided by the divorce court based on a system called equitable distribution. Virginia is one of more than forty states that has adopted an equitable distribution law for dividing marital property and debts in a divorce, unless the spouses have contracted in writing for a different method of property division.
Equitable distribution does not automatically mean an even division of marital property, because the court will split the property between spouses in a way that is equitable based on the entire picture of the couple’s finances. Under Virginia’s Equitable Distribution law (Va. Code Ann § 20-107.3), there are 11 factors that a Virginia court must consider when dividing a divorcing couple’s marital property, which include:
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Their monetary and non-monetary contributions to the well-being of the family, and to the acquisition and care of their marital property;
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How and when specific items of marital property were acquired;
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The ages and health of the spouses;
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How long they were married;
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Whether either spouse has a pension or expects retirement benefits;
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Whether either spouse can support his or herself financially; and
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Any other factor the court considers relevant.
SHOULD WE CONSIDER A
VIRGINIA PRENUP?
Unfortunately, many marriages don’t have a fairytale ending. According to analysts and attorneys:
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41% to 50% of first marriages end in divorce
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60 to 67% of second marriages end in divorce
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About 74% of third marriages fail
Responsible adults routinely prepare for disasters as an obvious part of their everyday lives, but they generally protect against catastrophic events that have less than a 5% chance of occurring. With the chances of a “marital disaster” approaching 50% or higher, it might be worth at least considering the pros and cons of a VA prenup.
What is the #1 Reason to Consider a Prenup?
Importantly, when dividing assets a Virginia divorce court can also factor in bad behavior, as allowed by Va. Code § 20-107.3(E)(5). Where one spouse committed a crime, cheated, was abusive, or was otherwise at fault, those bad acts will count against that spouse when the court evaluates of how the property should be equitably divided. The takeaway from this observation? Virginia’s equitable distribution system necessarily requires a divorcing couple to assign blame in order to get the “best deal” from the court, which can escalate the emotional scarring for all family members affected by the separation.
§ 20-150(3) of the Virginia Premarital Agreement Act enables couples to agree on how to divide their separate and Marital Property. Today, it is increasingly common for couples elect to enter into a written premarital agreement that avoids the need to ever have a divorce court divide their marital property by equitable distribution.
Many couples “pre-agree” that it is in their best interests to have a written prenup that would divide their joint property evenly, rather than risking an expensive and emotionally draining court battle under the equitable distribution system.
Virginia Prenups often include specific terms relating to major assets that spouses may purchase together during marriage, such as real estate. For instance, a Virginia prenuptial agreement might split all of a couple’s marital property 50/50, except for real estate they purchase together which gets divided pro rata, according to each spouse’s percentage of contributions to the property.
ALIMONY (SPOUSAL SUPPORT) IN VIRGINIA
The right to receive alimony or spousal support after a divorce is another major topic that couples frequently address in a written prenuptial agreement, because the Virginia Alimony Laws (Va. Code § 20-107.1, Effective Jan. 1, 2023) often leave spouses no real choice but to hire divorce lawyers to fight over alimony in court.
When deciding whether to award alimony/support to a spouse at all, a Virginia court considers the factors and circumstances that led to the divorce, including the relative fault of the parties (e.g. adultery). In figuring out the amount of alimony to award and for how long, Virginia law requires the court to consider thirteen different factors, one of which is how the marital property will be equitably distributed (as described above).
A marrying couple that leaves alimony for a divorce court to decide has essentially agreed to battle it out in a public forum with little or no certainty as to the eventual outcome.
Alternatively, § 20-150(4) of the Virginia Premarital Agreement Act allows couples to agree on a wide variety of spousal support terms, because everyone’s situation is unique.
It is very common for Virginia couples to enter into a premarital agreement under which they completely waive the right to receive alimony/spousal support in the event of divorce. However, many people are pleasantly surprised to learn that a Virginia prenup agreement can actually guarantee the right to payment of some minimum amount of alimony if the marriage is dissolved (e.g. a lump sum payment of $50,000 upon divorce). Frequently couples choose to allow - but limit - the amount of alimony available to either of them in the event of divorce, so that each party knows their “worst case” scenario in the event of a divorce.
Some couples agree to allow a spouse who is unemployed at the time of separation leading to divorce (e.g. a stay-at-home parent situation) to seek some pre-agreed amount of alimony, but otherwise waive the right to seek spousal support if both are employed. For the most part, a couple entering into a prenup in Virginia can freely agree to whatever alimony terms make them comfortable to enter the marriage, given their unique personal situation.
Omitting spousal support terms from a prenuptial agreement just leaves the spouses to rely on default state laws in the event of divorce, which can lead to a court battle. Couples who agree on pre-defined alimony payment terms in their Virginia premarital agreement can enjoy peace of mind that enables them to embark on the wonderful roller coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
SUMMARY
A divorcing couple that entered into a Virginia prenuptial agreement before getting married has a contract that provides certainty as to their rights, minimizes conflict, hostility, and legal costs. A well-drafted prenup is like a roadmap that helps both spouses find the path of least resistance and conflict amidst the emotional turmoil of the separation and divorce process. Signing a written premarital agreement also provides some certainty as to their marital and divorce rights under Virginia law.
IMPORTANT: There are many other terms that are typically included in Virginia Prenups beyond those premarital concepts introduced above. The above list of concepts commonly included in Virginia premarital agreements is not at all exhaustive and is for example only.
If you are engaged to be married and interested in learning more about Prenuptial Agreements in Virginia, please accept our invitation to schedule a free consultation with a Prenup Pros attorney 1-6 months before your anticipated wedding date.
VA Premarital Agreement Act
VIRGINIA PREMARITAL AGREEMENT ACT
§ 20-147. Application.
This chapter shall apply to any premarital agreement executed on or after July 1, 1986.
1985, c. 434; 1986, c. 201.
§ 20-148. Definitions.
As used in this chapter:
"Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
"Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
1985, c. 434; 1986, c. 201.
§ 20-149. Formalities of premarital agreement.
A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become
effective upon marriage.
1985, c. 434; 1986, c. 201.
§ 20-150. Content of agreement.
Parties to a premarital agreement may contract with respect to:
1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. Spousal support;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
1985, c. 434; 1986, c. 201.
§ 20-151. Enforcement; void marriage.
A. A premarital agreement is not enforceable if the person against whom enforcement is sought proves that:
1. That person did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed and, before execution of the agreement, that person (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
B. Any issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. Recitations in the agreement shall create a prima facie presumption that they are factually correct.
C. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement shall be enforceable only to the extent necessary to avoid an inequitable result.
1985, c. 434; 1986, c. 201.
§ 20-152. Limitation of actions.
Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
1985, c. 434; 1986, c. 201.
§ 20-153. Amendment or revocation of agreement.
After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
1985, c. 434; 1986, c. 201.
§ 20-154. Prior agreements.
All written agreements entered into prior to the enactment of this chapter between prospective spouses for the purpose affecting any of the subjects specified in § 20-150 shall be valid and enforceable if otherwise valid as contracts.
1985, c. 434; 1986, c. 201.
§ 20-155. Marital agreements.
Married persons may enter into agreements with each other for the purpose of settling the rights and obligations of either or both of them, to the same extent, with the same effect, and subject to the same conditions, as provided in §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon their execution. If the terms of such agreement are (i) contained in a court order endorsed by counsel or the parties or (ii) recorded and transcribed by a court reporter and affirmed by the parties on the record personally, the agreement is not required to be in writing and is considered to be executed. A reconciliation of the parties after the signing of a separation or property settlement agreement shall abrogate such agreement
unless otherwise expressly set forth in the agreement.
1987, c. 41; 1998, c. 638; 2003, cc. 662, 669.
Va . Code 20-150(1)
Va. Code 20-150(3)
Va. Code 20-150(4)
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