A prenuptial agreement can make the stress of divorce, separation or death a lot easier. About half of all marriages end in a divorce, so it’s wise to consider the possibility as unromantic as that may seem. Prenuptial agreements, also known as premarital agreements, cover how property acquired before and during marriage is to be handled and who controls that property during the marriage and after a separation, divorce or the death of a spouse. Prenuptial agreements can address the issue of spousal support. Prenuptial agreements can’t dictate the amount of child support after a divorce.
Without a prenuptial agreement, property division of assets in Virginia, called equitable distribution, is determined by which assets each couple brings into the marriage and which assets spouses acquire by gift or inheritance during the marriage. These assets, known as separate property, are given back to the spouse who acquired them after a divorce. Any property acquired during the marriage but before a separation is known as marital property and is divided between the couple on divorce.
How Does a Prenuptial Agreement Work?
A prenuptial agreement is a binding contract between two people in anticipation of marriage. Generally, one of the future spouses begins the process by hiring a prenup lawyer, who will work with the couple to draft an agreement to suit their needs. An experienced family lawyer should become familiar with the parties’ finances, liabilities, and any other information about assets that the couple wants to protect in the event of a divorce.
After the prenup is drafted, the other spouse should have their own lawyer review the document. Though it may feel strange at the time, both spouses should be separately represented to make sure the agreement is fair. Once the agreement looks good to both parties, they will sign the agreement and keep it somewhere safe. Both spouses should always independently have access to the agreement.
Types Of People Who Prepare A Prenuptial Agreement
Premarital agreements are for people who have significant assets before the marriage or expect to earn or acquire large assets during the marriage. People with few assets such as young couples who live on a salary generally don’t prepare a prenuptial agreement. Celebrities, older people who have acquired assets, people with inherited wealth and people with successful businesses including professionals should consider a prenuptial agreement if they think there might be a divorce. Our firm advises that premarital agreements be agreed to well in advance of the wedding date.
Should I Get a Prenuptial Agreement Even if I Am Not Well-Off?
Prenuptial agreements carry a stereotype that they are only for the extremely rich. However, the point of a prenuptial agreement is to protect yourself in the future, even if you can’t anticipate your income. For example, if you are considering starting a business or obtaining an advanced degree someday, you may eventually have assets that you would like to protect. Similarly, you may want to ensure you have rights in your family home or future inheritances. There are countless reasons why you should consider signing a prenuptial agreement before your marriage. Consider speaking with a prenup agreement lawyer to learn more about how a prenuptial agreement can help protect you.
Can You Get a Prenuptial Agreement After Marriage?
Yes. In Virginia, a nuptial agreement entered into after the marriage is called a postnuptial agreement. Postnuptial agreements cover all of the same terms as a prenuptial agreement under Virginia’s Premarital Agreement Act, such as:
- How property will be distributed upon divorce
- How spousal support will be arranged
- The rights and obligations of each of the parties
- The spouses’ ability to sell, use, assign, mortgage, or otherwise encumber property
- How you would like to handle any existing wills and trusts or set up trusts to carry out the agreement
- Ownership rights in death benefits
- Almost any other term that is not unlawful in Virginia
Like a prenuptial agreement, postnuptial agreements cannot attempt to settle child support issues in advance of the divorce. Note that a postnup can also revoke or amend a prenuptial agreement. Postnuptial agreements often happen when one or both of the spouses’ financial positions changes significantly, and they want to make sure they can protect their assets or businesses in case of divorce.
Defenses To A Premarital Agreement
There are some ways to attack the validity of a premarital agreement. The signing of the agreement has to be voluntary and it cannot be unconscionable. Failure to disclose assets or financial obligations can be considered unconscionable.
Another way to defend against a prenuptial agreement is if the agreement was oral. Oral pre- and post-nuptial agreements are invalid in Virginia, meaning the agreement must be in writing and signed by the spouses.
Contact The Law Office Of Afsana Chowdhury If You’re Interested In A Prenuptial Agreement
Our North Virginia domestic relations firm will explain the law, the requirements, and the reasons for a prenuptial agreement. Our prenup agreement lawyers will also explain what is likely to happen if you do not have a prenuptial agreement. Contact our firm at 703-782-4273 for an initial phone consultation or schedule a consultation online to get legal advice on premarital agreements. The firm offers affordable rates for all family law matters.