Can I Sign a “Pre-Nup” After Marriage?
Postnuptial Agreements in Virginia
Every year, it seems that more and more individuals are seeking prenuptial agreements. What was once a tool used only by the rich and famous has increasingly become a mainstay of domestic relations law. Statistically, prenuptial (“existing or occurring before marriage”) agreements, or “prenups,” are used more often by individuals who have been married before or are getting married for the first time later in life. They are often used to protect a separately-owned business or to contractually limit (or eliminate) a spousal support obligation to the other party. But what if you’re ten years into a marriage and want to start a business? Or you decide to change careers to a more lucrative field? Can you still get the advantages of a prenup after marriage?
The short answer is “yes.” The Virginia Premarital Agreement Act is part of the “Domestic Relations” laws of the Commonwealth of Virginia. The final provision of that act is located at Virginia Code § 20-155. In that section, married persons are specifically empowered to enter into agreements to settle “the rights and obligations of” the parties in the same manner as a prenup. Because the parties are already married, any postnuptial or marital agreement immediately becomes binding on the parties.
So why might a husband and wife want to pursue a postnup? One reason might be that a spouse is set to inherit a sizeable estate. Under Virginia law, inherited property starts out as the separate property of the individual spouse. But, if its owner puts that inheritance into a joint account, or otherwise mixes it with marital assets, the inheritance can be turned into marital property. Moreover, a surviving spouse can retain inheritance rights over the estate of their deceased spouse, even if the deceased spouse had a will or trust. A spouse (or, more likely, the spouse’s family) may want to keep inherited property “on their side of the family,” making a postnup the best way to guarantee family estates are not lost.
Another potential reason to consider a postnup is the creation of a business. A business venture started during the marriage would likely be categorized as marital property in a divorce action. Potential business partners may be wary of creating a business without assurance that a chunk of their enterprise will not be sliced off and awarded to a spouse. A postnup could establish between spouses what rights each of them have (or do not have) in an otherwise marital asset.
There is one very common form of postnuptial agreement used in Virginia, and it is one that has been discussed on this blog in great detail: separation agreements. Parties signing a separation agreement are agreeing to settle their “rights and obligations” to each other, just as in a prenup or the other examples of postnups provided above. But with a separation agreement the parties are dividing these responsibilities specifically to then begin living as separate individuals (usually leading to a divorce). In some cases, the parties’ inability to reach a postnup to protect inheritances, income, or business ventures could well end up leading to the need for a separation agreement instead.
The family law attorneys of Livesay & Myers, P.C. represent clients in all types of marital agreements, including prenups, postnups, and separation agreements. Contact us to schedule a consultation today.