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Benefits of Prenuptial Agreements in Virginia

Even though it is not very romantic to consider death or divorce on the eve of beginning a new life together, there are various situations where couples about to wed should consider prenuptial agreements. A prenuptial agreement is a contract that couples sign prior to marriage which details the rights and obligations of each party in the event of death or divorce. A well-drafted prenuptial agreement can make things easier during difficult times that may arise in the future.

Requirements of a Valid Prenuptial Agreement

A prenuptial agreement is a legally binding contract, so couples entering into such an agreement need to observe certain formalities to ensure that the contract is valid. In order to have a valid prenuptial agreement under Virginia law, the agreement must be in writing and signed by both parties. Both parties need to voluntarily agree to the contract; if there is evidence of force or coercion, the agreement will be unenforceable.

Each party needs to provide a fair and reasonable disclosure of property or financial obligations to the other. If a party does not provide such a disclosure - and the other party does not expressly waive the right to such information - the person who did not get the financial information may later seek to have the agreement declared unconscionable and unenforceable.

A prenuptial agreement may cover a variety subjects, including:

  • The rights of each party to use property during the marriage
  • Disposition of marital property in the event of death or divorce
  • Alimony
  • Signing and maintaining wills or trusts to execute the provisions of the prenuptial agreement
  • Ownership of and rights to benefits from life insurance policies
  • Choice of law controlling the agreement
  • Any other matter implicating personal rights not in violation of public policy or statute

Who Gets Prenuptial Agreements?

Prenuptial agreements are most common among couples where one or both of the parties have been married before and have children from the previous marriage. A prenuptial agreement allows them to dictate the distribution of their assets after their deaths. Even if a person writes a will leaving all of his or her property to offspring, the surviving spouse may still choose to take his or her "elective share" of the deceased's assets under the law. By having a prenuptial agreement in place, the couple can address that issue and each spouse can agree to waive the right to an elective share so that the children can have all of the property in accordance with the parent's wishes.

Another common scenario for a prenuptial agreement is for those couples where one of the parties is a business owner with other partners. A prenuptial agreement outlining where the party's shares in the business go after his or her death can prevent the surviving spouse from unwittingly becoming a co-owner in the business.

When one spouse makes considerably more money than the other or is entering the marriage with substantially larger assets, the couples also may draft a prenuptial agreement for a variety of reasons. The spouse with the greater income or assets may seek to protect the assets. The spouse with fewer assets may secure rights to certain assets or guarantee a certain amount of alimony. Similarly, if one of the spouses is entering the marriage with a lot of debt, the parties may have a prenuptial agreement absolving the other spouse of any responsibility for the debt in the event of divorce or separation.

Finally, if one of the spouses envisions leaving the workforce to care for children, the couple could benefit from outlining financial support that the non-working spouse receives in the event of divorce in a prenuptial agreement.

There are a variety of reasons that people enter into prenuptial agreements. None of them imply that the people about to be married are betting that the marriage will fail. As unromantic as it may seem to discuss where money will go after the marriage is over, the couples who can have such discussions show that they have a strong enough relationship to survive together.


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