Premarital Agreements In Virginia
The Virginia Premarital Agreement Act, first adopted in 1985, allows parties to enter into premarital agreements (commonly referred to as “prenuptial agreements” or “prenups”).
Despite the widely held belief that prenups are only for the rich and famous, a premarital agreement is something that every couple should consider. A prenup protects the premarital assets of one or both parties and allows a couple to contemplate the division of assets prior to the marriage. More importantly, it allows a couple to consider these issues prior to a divorce, when neither party is angry or emotional.
Although any marrying couple may enter into a premarital agreement, some of the more common reasons for entering into a prenup include:
- Marriages where the parties are older, and have significant assets they have acquired over the years, that they want to keep separate;
- Marriages in which one party who has acquired wealth through an actively managed business or investment portfolio wishes to ensure that the wealth remains separate property;
- Marriages in which the parties wish to clarify which items of property are marital and which are (and shall remain) separate property; and
- Marriages in which one party wishes to limit or eliminate altogether the possibility of spousal support (alimony).
Despite the widely held belief that prenups are only for the rich and famous, a premarital agreement is something that every couple should consider. A prenup protects the premarital assets of one or both parties and allows a couple to contemplate the division of assets prior to the marriage. More importantly, it allows a couple to consider these issues prior to a divorce—when neither party is angry or emotional.
Six Things to Keep in Mind Before Signing a Prenup
If you or your soon-to-be spouse are pursuing a prenuptial agreement for your upcoming marriage, here are six things to keep in mind as you move forward:
1. Remember the purpose. The purpose of a prenuptial agreement is more about simplifying and reducing the costs of a potential divorce, and less about defining the marriage relationship or dictating the behavior of either spouse. Keeping this in mind should help you determine which terms are necessary to include and which terms are not.
2. Protect what you have now. People often enter into prenuptial agreements to protect the separate assets they are bringing into the marriage. If that applies to you, make sure to specify each separate asset in your prenup, and consider contingencies to make sure you keep those assets protected throughout the marriage. For example, you should consider what happens when a separate asset is merged into or commingled with a marital asset.
3. Protect what you acquire with your spouse. Decide how marital assets are going to be divided. Will they be split 50/50? Are there certain types of property that, despite being acquired during the marriage, will remain separate?
4. Don’t sell yourself out of your future. Know what you don’t know. What you don’t know is what sacrifices you are going to make in your marriage for your spouse and/or your children. What you don’t know is whether your job will always be in demand, or whether you will make a major career change 10 years into the marriage. Selling yourself out of spousal support now may put you at financial risk at a later time. It may even define the choices you make throughout your marriage.
5. Don’t spend much time on custody and visitation. You can try to come to an agreement on custody and visitation of future children, but it is unlikely that your prenuptial agreement will play a major role in your custody and visitation battle 10 years down the road. The reason for this is that Virginia courts consider a variety of factors in determining the best interests of the children, and it is unlikely that your prenuptial agreement will carry much weight in that determination.
6. Know your bottom line. Finally, if you are unable to reach an agreement with your soon-to-be spouse, know what your bottom line is, and when you will need to walk away.
An experienced family law attorney can help you draft a premarital agreement, or can advise you as to whether to sign a prenup presented to you by a prospective spouse. You absolutely should not sign a prenuptial agreement before reviewing it with a knowledgeable family lawyer.
The family lawyers at Livesay & Myers are experienced in the drafting, negotiation and review of prenuptial agreements. If you need assistance with a prenup in Northern Virginia, contact us to schedule a consultation today.
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