A prenuptial agreement is a written agreement made between two people prior to their marriage. The agreement sets out how assets are to be divided in the event of divorce. The agreement may address whether spousal support will be payable to one or both parties and under what terms. Each person is also required to give the other a full disclosure of their assets at the time the agreement is entered.
Who should enter into a prenuptial agreement?
Despite prevailing public opinion, prenuptial agreements are not just for the wealthy. One of the benefits of a well-drafted prenuptial agreement is that it can eliminate uncertainty should the marriage fall apart. Planning in advance for children from a prior marriage or a family-owned business can provide peace of mind to many people Couples with prenuptial agreements have a document to fall back on when it comes to dividing their assets. As a result, parties may be able to avoid the mental and emotional toll of going to court and the associated costs like attorney’s fees and expert witness fees.
Important questions to address when considering a prenuptial agreement:
- What assets do I want to protect and maintain as my separate property?
- What happens to assets acquired during the marriage? Will those assets be divided equally or some other way?
- How should household and family expenses be paid during the marriage? Should both parties contribute equally?
- Under what terms should spousal support be payable? Should either party agree to a specific amount of spousal support or waive spousal support?
Other important points to consider:
Each person should have their own attorney review the agreement before signing it. A prenuptial agreement is a contract between the spouses that will be upheld unless there is a finding of fraud, duress, or unconscionability. Courts presume a prenuptial agreement is valid unless proven otherwise. In Virginia, prenuptial agreements are governed by the Virginia Premarital Agreement Act.
Timing should also be considered. It is best to allow a reasonable amount of time for each person to review the agreement and sign it in advance of getting married. Improper timing, such as leaving signing or even notice of the existence of the prenuptial agreement to the days or hours immediately before the marriage, could cause later challenges to the validity of the agreement. Sufficient advance timing can prevent questions about whether both parties had sufficient time to review or were under any unreasonable stress to sign.
Lastly, many people sign prenuptial agreements, put them in a drawer and never look at them again until problems arise in their marriage. Parties should refer to their prenuptial agreements from time to time as assets are acquired and/or transferred, when children are born or adopted during the marriage, or when other major changes occur to ensure that there are not any unintended consequences. Creating records throughout the marriage help answer questions that may arise at the end of the marriage about how certain assets were acquired or paid for. Prenuptial agreements can be amended throughout the marriage to keep up with the spouses’ circumstances and desires.
Contact a Stiles Ewing Powers attorney now to learn more about prenuptial agreements.