Prenuptial Agreements

Need a Prenuptial Agreement?

A prenuptial agreement is a contract that sets forth the rights and limitations of each spouse upon divorce. Such agreements are entered into prior to marriage. Spouses may include any of the following factors in a prenuptial agreement:
  • Property settlement, including the division of real and personal property
  • Spousal support rights
  • Possession of the family residence
The parties may not, however, agree to decisions regarding child support obligations, because such support is a legal right that is specifically set by statute. Likewise, child custody is an issue that is determined by examining the best interests of a child and so a prenuptial agreement is not binding on the court in child custody decisions.

Non-Disclosure and Unconscionability

One defense to enforceability of a prenuptial agreement is unconscionability. Unconscionability may be demonstrated by showing that:
  • The agreement was substantively unfair, and
  • There was no disclosure of assets by the richer party
If the parties divorce and the prenuptial agreement is deemed invalid due to non-disclosure, the parties can set the terms of the divorce in a written property settlement or the court can make the decision on how the marital property should be divided.

Voluntariness and Enforceability

A second defense to enforceability of a prenuptial agreement is lack of voluntariness. When determining whether a party voluntarily entered into a prenuptial agreement, courts consider the following factors:
  • Whether the parties were represented by independent counsel
  • Time pressure
  • Understanding of the weaker party where there was a forfeiture of rights
  • Relative knowledge and business sophistication of the two parties
While independent counsel is not a legal requirement of prenuptial agreements in Virginia, it is an important factor in determining whether an agreement was entered into voluntarily. Accordingly, it is best for each party to seek the counsel of an independent Fairfax divorce attorney prior to entering into such an agreement.

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