If you are considering marriage or getting married soon, you may have contemplated whether or not you should enter into a premarital or a prenuptial agreement with your significant other. Reasons couples may want to enter into a prenuptial agreement, range from wanting to protect existing assets, future assets, income, and inheritance, to protection from a potentially expensive and stressful divorce in the future.
Virginia’s Premarital Agreement Act, Code §§ 20-147 through 20-155, allows parties to enter into a premarital agreement and settle the rights and obligations of the parties upon one party’s death or in the event of the divorce.
Despite the stereotype attached to premarital agreements, it is not just for the rich and famous. A premarital agreement can be extremely useful to most people not only in the case of a divorce, but also if one wants to protect property, inheritance, and earnings in the event of their death.
Should I Worry About Custody & Support?
While drafting your premarital agreement, don’t spend too much time on custody & support. Virginia law requires the courts to consider a variety of factors when determining custody. These include relationship of each parent with the child, a parent’s ability to meet emotional, intellectual and physical needs of the child, age, physical, and mental condition of the child etc. The court will not take into consideration the custody provisions of the premarital agreement while considering these factors.
Similarly, child support in Virginia is calculated pursuant to the Virginia Child Support Guidelines which takes into account the parties’ gross income among other factors. A Virginia Court will not consider the premarital agreement while determining child support.
A Few Things To Consider:
Purpose: The reason you are entering into a premarital agreement will and should always dictate what is included in it. Your reason to enter into a premarital agreement may be to protect your business that you spent your life building or to protect a trust which you inherited from your family. Keep things simple and don’t over complicate the agreement by trying to dictate how things should be in your marriage and how your spouse should act. The goal should be to minimize confusion and litigation costs in the event of a divorce or upon death of one spouse.
Things Change With Time: You should take into consideration that over the duration of your marriage, your circumstances may change. You may agree to waive your right to receive spousal support because both you and your spouse have bright careers ahead and earn a good salary. However, things don’t always remain the same. Once you have children, one of you may decide to take a break and stay at home with the children. Further, your career prospects may change in the future. Make sure you account for those changes and don’t waive any rights (eg. alimony or spousal support) which you may regret later on. A good example of taking future changes into consideration would be that instead of both parties waiving all future spousal support, a good prenuptial agreement would allow a spouse who has a weaker financial status at the time of separation to seek reasonable spousal support and the other spouse to waive spousal support.
Changing Terms Of Premarital Agreement: You can change the terms of a prenuptial agreement by entering into a new agreement. You can also terminate your prenuptial agreement by entering into a written agreement which explicitly allows for the termination of your last agreement.
Can You And Your Spouse Use The Same Lawyer: No, because an attorney has a duty to advise and represent only one party, whether it be a divorce case or drafting a premarital agreement. You and your spouse should both consult their own attorney. If you are attempting to save costs, one party’s attorney can draft the whole agreement and the other can then review it with their client and suggest changes.
What Should I Include In My Premarital Agreement?
What provisions your prenuptial agreement contains depends on various factors such as your age, the assets you want to protect, your present and expected future income etc.
How a young couple entering into their first marriage will structure their agreement will be very different from the provisions considered by an older couple who already have children from their previous marriage.
The younger the couple, the longer the timeline they will have to consider when determining what to do with various issues related to a marriage and divorce. For example. even though both parties may be working before marriage, having children may lead one spouse to give up or hold back on their career. A 30 year old couple getting married may be together for the next 30 years which makes it hard to contemplate and include all the unknowns in the contract.
In contrast, an older couple with one spouse owning a successful business may want to enter into an agreement in order protect the spouse’s business in the event of a divorce or death. That spouse may want to include a provision that protects his or her existing business or any income derived from that business in the event of a divorce.
This is where our previous suggestion regarding knowing the purpose of the agreement and keeping things simple comes into play. You should always remember the reason for drafting the Premarital Agreement. The purpose should be to simplify things in case your marital relationship doesn’t go as planned, not use it to complicate things before or during the marriage.
Our experienced Virginia Divorce Attorney can provide you with invaluable guidance when it comes to drafting your premarital or prenuptial agreement.
To schedule a consultation regarding your prenuptial agreement, call 571-766-6860 or email us at firstname.lastname@example.org.
We are located at 12110 Sunset Hills Road, Suite 600, Reston, VA 20190 and serve Fairfax, Loudoun, Arlington, Prince William and all other Northern Virginia Counties.