Although nobody gets married with the expectation that the marriage will end in divorce, roughly half of all marriages do end in divorce. A divorce requires settling various financial issues and disputes between the spouses, along with other issues, such as child custody. While resolving these issues in a trial can prove expensive and time-consuming, spouses can avoid the difficulties of trial by reaching a marital agreement.
Contact Invictus Law today for an initial case review with an experienced family law attorney to learn more about the benefits and requirements of marital agreements. Don’t wait to discuss your rights and options and how our firm can help you protect your interests in negotiating a marital agreement with your spouse.
Types of Marital Agreements
Marital agreements come in three basic types: prenuptial agreements, postnuptial agreements, and separation agreements.
The primary difference between each type of agreement is the timing of when the agreement is entered into by spouses. A prenuptial agreement refers to an agreement entered into prior to the marriage, while a postnuptial agreement is entered into after the parties have already been married.
In many cases, spouses will develop a postnuptial agreement after they have been separated due to difficulties in the marriage but ultimately choose to continue the marriage. On the other hand, a separation agreement refers to an agreement that spouses reach after they have separated, in contemplation of a pending divorce.
What Is the Purpose of a Marital Agreement?
The purpose behind all three types of marital agreements is to resolve economic issues between spouses in the event of their separation and divorce. Marital agreements can also allow couples to resolve disputes over child custody and support, although any child custody and support agreements must be approved by the court. Each of the three types of marital agreements can provide spouses with certain benefits.
Prenuptial agreements allow a couple about to be married to plan for their marriage, including outlining your respective expectations for your relationship. You can also plan for and resolve any financial disputes or disagreements ahead of time while you both still have a healthy, positive relationship.
Trying to resolve financial issues after you’ve separated and are heading towards divorce can become much more difficult, especially if your personal relationship has soured and you can no longer effectively communicate with one another or work together.
Postnuptial agreements allow couples to address significant and unexpected changes to their relationship, such as the birth of children, a large inheritance, or significantly improved finances through career advancement. Postnuptial agreements may amend an existing prenuptial agreement or postnuptial agreement to address these changes.
Postnuptial agreements can also have benefits for couples who have been through marital trouble but have decided to stay together, since it allows the couple to resolve financial issues in the event their marriage ultimately does not work out.
Finally, separation agreements allow a divorcing couple to avoid the time and expense of a trial by resolving the issues raised or to-be-raised in a divorce complaint. This allows the couple to control the outcome of their divorce, rather than leaving the outcome to the court’s decision. A divorcing couple can ask the court to incorporate the terms of their settlement agreement into the judgment of divorce.
This makes enforcing a separation agreement much easier, as violating a separation agreement that has been incorporated into a judgment of divorce means violating a court order, which can result in the court finding the offending party in contempt. If a settlement agreement is not incorporated into the judgment of divorce, a party aggrieved by their ex-spouse violating the terms of the agreement must file a breach of contract lawsuit to enforce the agreement.
Under Virginia law, a prenuptial agreement must be in writing and signed by both spouses. Both spouses must enter into the agreement knowingly and voluntarily, without any duress, coercion, or undue influence. A prenuptial agreement may address any topic not otherwise prohibited by public policy. For example, spouses may not waive child support requirements since public policy holds that the right to child support belongs to the child, not the parents.
A postnuptial agreement has most of the same legal requirements as a prenuptial agreement. Postnuptial agreements must be written and signed by both spouses, who must knowingly and voluntarily enter into the agreement.
Finally, a separation agreement must also be in writing and signed by both parties. Both spouses must enter the agreement voluntarily with full understanding of its terms. Both spouses should have been afforded the opportunity to review the agreement with independent counsel. One attorney cannot represent both spouses in the formation of a separation agreement. A spouse may not use duress or undue influence to force the other spouse to enter the agreement.
The agreement must also be free of any fraud, which means that any disclosures made by one spouse to the other must not be false or misleading, nor may a spouse intentionally or knowingly withhold material information from disclosure. Finally, a separation agreement must not be egregiously unfair to one spouse or have terms that violate public policy.
How Invictus Law Can Help
If you and/or your spouse are considering a marital agreement for your relationship, Invictus Law can help you by:
- Ensuring you understand the benefits and requirements of a marital agreement
- Taking the time to go over your needs and goals so that we know what a marital agreement for your relationship should cover
- Preparing tailored legal solutions to meet your specific needs
- Representing your rights and interests during negotiations over the agreement with your spouse and their legal counsel
- Reviewing any marital agreements proposed to you by your spouse
- Providing personalized attention and responsive communication throughout your case so that you stay up to date on the progress of your agreement
Call Invictus Law today at (757) 317-5125 or contact us through our website for an initial consultation to learn more about the process of preparing marital agreements. We’re ready to discuss how our firm can help you pursue a marital agreement that protects your rights and interests and provides you with the outcome you need and want.