Marital Agreements

We understand how going through divorce or separation proceedings can be stressful and challenging. Marital agreements can be a way to help avoid the stress of litigation by making decisions on certain issues in the event of a divorce or separation.

What are Marital Agreements?

Marital agreements are arrangements that two spouses create to make determinations on various issues either before or after marriage. Marital Agreements can be a helpful way to reduce the headache of litigation by creating determinations outside of court. Virginia Marital Agreements are generally allowed to cover a variety of issues that are permissible under law. These agreements can help couples prevent concerns about financial division if there is a subsequent separation.

What are the Different Types of Marital Agreements?

In Virginia, there are two primary types of marital agreements:

  1. Premarital or Prenuptial Agreement – A couple enters into this agreement before getting married, but the agreement becomes effective upon marriage.
  2. Postnuptial Agreement – A couple enters into this agreement after getting married and the agreement is effective immediately upon signing.

Premarital Agreements

In Virginia, a Premarital Agreement is defined as an agreement between two prospective spouses contemplating marriage and is in force once they get married. The property in a premarital agreement can include real estate, personal property, and income. A premarital agreement should be in writing and signed by both parties. Many items can be included in a premarital agreement including the following:

  1. The rights of property of either or both parties whenever and wherever it was acquired or located.
  2. The right to buy, sell, or lease a mortgage or manage and control the property.
  3. What happens after a separation, death, or divorce.
  4. Spousal support.
  5. Creating a will, trust, or other forms of estate planning to carry out the agreement.
  6. Life Insurance benefits.
  7. Family Business Interests
  8. Income Tax Returns

A premarital agreement can be amended or revoked after marriage by a written agreement that both parties sign.

Postnuptial Agreements

A post-nuptial agreement is a type of marital agreement that is signed after a couple is wed. The purpose of a postnuptial agreement (or postnup) is actually very similar to that of a premarital agreement. In general, postnups deal with issues of property division, asset division, spousal maintenance, family businesses, and other such matters.

Postnuptial agreements are commonly thought to come into play only in instances of infidelity or other betrayals of trust, but that is certainly not the case. More and more couples are considering postnups when they have a dramatic change in financial situation or other big life-change. Contrary to popular belief, postnups are NOT all about mistrust, but instead are often signs of working together to make sure you are on the same page.

Property Settlement Agreements

A property settlement agreement is defined as a contract dividing spousal assets of a couple seeking a divorce and is incorporated into a divorce decree. Typically, in a “No-Fault” Divorce in Virginia, the individuals must have been separated for one year prior to the filing of the divorce. However, if the two parties have a Property Settlement or Separation Agreement and there are no minor children, the couple must only have been separated for six months.

What do Marital Agreements Cover?

Marital Agreements should include the following:

  • Delineate which spouse the property belongs to.
  • Define Spousal Support
  • Indicate if there is a time limit on the agreement
  • Specify whether anything negates the agreement for example having children or infidelity
  • Distinguish which spouse holds certain finances and debts

What is Not Covered in a Marital Agreement

Typically, child custody and child support may not be in a marital agreement because it’s possible that the agreement doesn’t take into consideration the child’s best interest.

Additional Considerations When Creating a Marital Agreement

What Property is Separate Property and What Property is Marital Property

There are three types of property to consider during a divorce in Virginia, “marital property”, “separate property”, and property that is “part marital and part separate”. Both property and income earned and acquired prior to marriage continue to be that spouse’s property after marriage if the property is not mixed with marital property or the other spouse’s property. Income earned during a marriage is “marital property” and is owned by both spouses equally unless agreed to otherwise. It can be complicated to determine what category property falls into especially if it falls into the third category of part marital and part separate property. Our team will work with you and remove the anxiety by explaining these issues.

Spousal Debts

When creating a Marital Agreement it can be helpful to determine how debt will be paid, especially if one spouse has a substantially higher amount of debt than the other spouse. Our attorneys can help craft the Marital Agreement to help protect items from creditors and protect the separate property of the spouse that is not in debt.

Estate Planning Considerations

It is very important to work with an experienced attorney when looking at the impact a Marital Agreement will have on a Trust and other estate plans. The Virginia State Bar indicates, “Trust documents and transfers not carefully drafted may constitute a “marital settlement” under the Premarital Agreement Act and waive rights the client would otherwise have to equitable distribution.”

Other Financial Matters

Individuals should consider insurance and retirement plans when creating a Marital Agreement. Further, the spouses should consider children from a prior marriage and how their beneficiary selections and/ or financial considerations will impact those children.

A Marital Agreement can alleviate some stress when dealing with a divorce or separation. Discuss your unique circumstances with us to ensure your Marital Agreement is best suited for all of your specific needs.

How Can a Lawyer Help Me With Marital Agreements?

A Fairfax divorce lawyer can provide knowledge and experience with the law in order to ensure that your rights are protected while setting up a marital agreement. It is important to have an experienced lawyer on your side to fight for your best interests, otherwise, the marital agreement might not truly protect your best interests and you may find yourself in court years down the road.

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Frequently Asked Questions

What is a marital contract?

A marital contract (also known as a marital agreement) is something that a couple signs either before or after their marriage. This agreement generally contains the terms for separating the couple’s property in the event of their divorce.

What are the different types of marriage contracts?

The two primary types of marriage contracts are prenuptial agreements and postnuptial agreements. These two different contracts essentially serve the same purpose, the primary difference is when they are signed and become effective. A prenuptial agreement is signed before a couple gets married and only becomes effective upon marriage, and a postnuptial agreement is signed at some point after they are wed and becomes effective immediately.

What is a prenup?

A prenup is another term used for a ‘prenuptial agreement’. This is a type of marital agreement that is signed before a couple ties the knot. A prenup can cover a wide range of issues that the couple wants to have in writing, but generally, these revolve around assets and debts as well as spousal support, and what would happen if the couple were to split.

A prenup is another term used for a ‘prenuptial agreement’. This is a type of marital agreement that is signed before a couple ties the knot. A prenup can cover a wide range of issues that the couple wants to have in writing, but generally, these revolve around assets and debts as well as spousal support, and what would happen if the couple were to split.

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