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What Is A Prenuptial Agreement in Virginia?
“Marriage is the triumph of imagination over intelligence. Second marriage is the triumph of hope over experience.” – Oscar Wilde
That said, when you’re in love and planning to marry, you hope it will last forever. But predicting the future is impossible, and many things can go awry in a marriage, including the unexpected death of a spouse. You plan and hope for the best, but if you have assets prior to your union, you may want to create a prenuptial agreement, a contract, to keep your assets separate from your betrothed, among other post-marital considerations.
Marriage Statistics for Prenups
While some couples fear prenuptial agreements will jinx the success and longevity of their marriage and fear broaching the subject, reality and possibilities dictate a reasonable discussion. Statistics have shown that in the U.S., 50% percent of first marriages, 67% of second marriages, and 73% of third marriages end in divorce. It’s rational and responsible for a couple to consider premarital asset separation when both parties ostensibly want to create a harmonious marriage and avoid conflicts over money and property after the wedding.
Virginia law Code §20-147
Virginia law Code §20-147 through §20-154 governing prenuptial agreements, which is considered a legal civil contract, states that these documents are intended to settle the financial and property rights of prospective spouses and potential future rights to spousal support. The prenuptial contract becomes immediately effective upon marriage. Through a prenuptial agreement, a couple’s choices cannot be superseded by Virginia law in case of marriage dissolution.
Virginia law § 20-150
The specific content under Virginia law § 20-150 premarital or prenuptial agreements includes:
The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
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;
The disposition of property upon separation, marital dissolution, death, or the occurrence or non-occurrence of any other event;
The making of a will, trust, or other arrangements to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy;
The choice of law governing the construction of the agreement; and
Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
What’s more, as well as individual assets, a prenuptial contract may specify exclusion of premarital property including family heirlooms, a family business or a vacation home that you want to remain under the control and benefit of your pre-marriage family. If you anticipate receiving a promised or anticipated inheritance, or any other future family assets that you do not currently possess, these items can be itemized in a prenuptial agreement.
Prenuptial Agreement is a Tough Topic for Engaged Couples
Though a prenuptial agreement can be a tough topic to broach because it seems to imply you and your fiance expect your marriage to fail, they aren’t only for asset protection in case of divorce.
For instance, if a couple has children from a previous marriage or relationship and acquired assets prior to meeting their new love, they may want to legally define and document those assets so that upon death those assets transfer to those children. A prenuptial agreement can protect the inheritance rights of children and grandchildren biologically different from the current fiance. To most people, this seems fair. Without a prenuptial contract, a spouse may lay claim to the deceased spouse’s pre-marriage assets that the parent intended to bequeath to children born from a previous relationship.
Even couples without children from prior relationships may avoid future disagreements by simply clarifying whose assets belong to whom along with their financial rights and responsibilities during the marriage.
Another reason for a prenuptial agreement is if one future spouse’s income is more than the others, and if upon divorce, they’ve agreed pre-marriage on the amount, duration, and type of alimony, it can avoid not only contention but also the high cost of lawyers, court fees, and litigation in a battle for alimony.
Business Ownership and Prenups
A prenuptial agreement can also cover pre-marriage ownership of businesses. If you or your fiance own a business, a prenuptial agreement can clarify whether it remains separate from marital assets or is to be included as a marital asset. But, if divorce occurs and this was not specified as a separate asset, the business owner may find themselves undesirably being business partners with an ex-spouse.
Further, prenuptial agreements can protect both parties from the responsibility of each other’s premarital financial debts.
Even in the most amicable divorces, things can quickly become tricky when disagreements arise over the distribution of assets. It’s challenging enough to distribute assets acquired during marriage, but if you didn’t have a prenuptial agreement, you may be in for an acrimonious fight to maintain what was yours before the marriage.
Prenuptial Agreement: The Ultimate Test of Love or Money
Though this is an especially touchy consideration, if one fiancé is substantially wealthier than the other, the wealthier party may be secretly concerned that the other is marrying them for money—not for love. If the wealthier party presents a prenuptial agreement and reasonable guidelines to the other and is refused, it may be a reason to be wary. It sounds somewhat cold hearted, but being realistic can protect you from both emotional heartbreak, property and financial depletion.
Not that you ever intend to divorce, but what if?
For more information, look at Do I Pay Spousal Support When I Retire?
What If You Don’t Have a Prenuptial Agreement?
If you don’t have a prenuptial agreement, Virginia state law will tell you how your property will be divided, whether you like it or not. If you had the foresight to create a prenuptial agreement prior to marriage, you and your fiance can make your own rules for property division and avoid the courts deciding for you.
Or if children are born while the couple is married many times one partner will forfeit a lucrative career to care for their offspring, often for many years, losing valuable experience, seniority, and a vital business network. In such cases, returning to their profession or being required to pursue education or obtain new or updated skills will make it challenging to earn an income that will allow the previously home-focused parent to maintain their lifestyle. Should divorce occur, specifying within a premarital agreement what would be a fair monetary settlement in exchange for full-time parenting mutually agreed upon for the children’s benefit is intelligent planning.
Prenuptial Agreement Modifications
Of course, as time passes, life changes inevitably occur, and a prenuptial agreement can be reviewed and modified when significant events arise. Modifying a prenuptial agreement necessitates both spouses consenting to enter into a new agreement. Also, a couple can mutually agree to terminate a prenuptial agreement.
While in the throes of new romance it’s understandable to believe you are marrying only for love, but the other truth is that a state-sanctioned marriage is also a business relationship, a contract with civil obligations and protections. Should the romance wane and divorce be imminent, a solid, well thought out prenuptial agreement may protect you from more heartache than just what the dissolution of your marriage causes.
Deciding whether a prenuptial agreement makes sense for you is a sensitive matter. Whether you’ve yet raised the topic with your betrothed, a Manassas Law Firm attorney will meet with you alone or with your fiancé to discuss the pros and cons and a plan-of-action so you can decide how to move forward.
If you decide you want to create a prenuptial agreement, an attorney at the Manassas Law Firm will only be able to represent one of you; otherwise, it will be considered a conflict of interest. However, one of you can hire a Manassas attorney to draft the prenuptial agreement and the other consult with a separate attorney to review its acceptability.
Before you get married, schedule a free confidential consultation at our office with one of Manassas Law Group’s attorneys, call 703-361-8246. Or if you’re more comfortable, respond on our contact form, and someone from our legal team will get back to you promptly.