If you’re about to be married, you may wonder whether you need a prenuptial agreement and, if so, what should be included. Prenuptial agreements, or “prenups,” are a thoughtful way for couples to decide how property and other assets should be divided if the marriage eventually dissolves. While most spouses intend to stay married forever, should something go wrong, a prenup safeguards the future of both parties and future generations. Keep reading to learn more about the elements of a prenuptial agreement in Virginia and how an attorney could help you draft a prenup that meets every requirement.
Important Elements of a Prenuptial Agreement
The Premarital Agreement Act is a provision of state law that outlines the requirements for prenuptial agreements in Virginia. It also specifies what may be included in a prenup, situations in which it will be void, and how a prenup can be amended. Under state law, a prenuptial agreement must be in writing and signed by both parties to be enforceable. Spouses may agree to any of the following in a prenup:
- Their rights and obligations concerning any property owned by either spouse or both spouses
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
- How property will be divided upon separation, divorce, death, or the occurrence of any other event
- Spousal support
- The making of a will, trust, or another arrangement to carry out the provisions of the prenup
- The ownership rights in and division of the death benefit from a life insurance policy
- The choice of law governing the construction of the agreement
- Any other matter not in violation of public policy or criminal laws
Prohibited Issues in a Prenup
Most states prohibit spouses from including anything illegal in prenuptial agreements, such as provisions or requirements that, if carried out, would violate the law. Furthermore, spouses cannot include anything violating public policy and harming the public good.
Typically, couples may not include child support or custody issues in a prenup because family law judges often have the final say on these issues to protect the best interests of the children involved. For instance, a court would not deny a parent’s right to custody based on a prenuptial agreement.
Legal Requirements of a Prenup
A prenuptial agreement is typically enforceable if it meets the legal requirements. First, both parties must sign a prenuptial agreement, and it must be in writing. There are circumstances in which a prenup will not be enforceable. Under state law, a prenup is unenforceable if a party proves that:
- They did not execute the agreement voluntarily; or
- The agreement was unconscionable when it was executed, and before it was executed, they were not provided a fair and reasonable disclosure of the property of financial obligations of the other party, and they did not voluntarily and expressly waive, in writing, any right to disclosure of the other party’s property or financial obligations.
The court has discretion in determining whether an agreement is unconscionable. If the court determines that a marriage is void, a prenup is enforceable only to the extent necessary to avoid inequity among the parties.
Protect Your Future with a Valid Prenup
You can protect your future with a valid prenuptial agreement that outlines your rights and obligations.
At Invictus Law, we have experience helping couples in Virginia Beach draft marital agreements that meet their unique needs and goals. Working with our knowledgeable lawyers will give you peace of mind that your prenup is legally enforceable. Call us at 757-337-2500 or contact us online for a confidential consultation today.