We can all imagine it – a couple meets, date, fall in love, and then one day they become engaged! While excited phone calls, texts, and e-mails to family and friends, and choosing a venue, photographer, and dress are the norm, discussing a prenuptial agreement is not often part of a couple’s wedding planning. Maybe the couple is blinded by love, they don’t think that they have enough assets to even consider such an agreement, or one person is concerned that the other will get angry if the topic is brought up. Whatever the reason may be, though, the simple fact that divorce commonly occurs these days means that a couple would be foolish NOT to discuss a prenuptial agreement.
While it is understandable that newly engaged and deeply in love couples may not want to consider the “what ifs” of their marriage not succeeding, it is important that a couple not discount the positive aspects of a prenuptial agreement itself, as well as the process of creating that document. Simply, a prenuptial agreement is an agreement that governs the finances and assets of a couple and how those assets will be dealt with going forward, and will serve to protect the premarital assets (items acquired prior to the marriage) of each individual. Perhaps most important, however, is the fact that the sheer act of negotiating and creating this agreement compels the couple to discuss their finances, including any debt that either has, in a calm, unemotional state, making the discussion much different, and likely more productive, than the same discussion would be during the height of an unanticipated divorce.
In order to be considered a valid contract pursuant to Virginia law, the agreement must be in writing, and voluntarily agreed to and signed by each individual. Additionally, it is crucial that each person provides the other with a full and fair disclosure of their property and financial obligations. Among other things, a prenuptial agreement may cover:
What assets or property was owned by each individual prior to the marriage;
Each person’s rights to use that property during the marriage;
How property, finances, and assets will be divided or distributed in the event that the couple separates or divorces;
What will happen, if anything, if the couple divorces due to adultery or some other unanticipated event; and
Spousal support or alimony and whether it will be waived or limited in some manner.
As mentioned above, in order to be valid, a prenuptial agreement must be in writing and signed by each party to the agreement. It is important to understand, though, that even if those basic requirements are met, an agreement may still be invalidated in a number of different circumstances, including, but not limited to, the following:
One of the individuals did not enter into the agreement voluntarily, or signed it while under duress or undue influence. This may be found when the agreement is signed at the 11th hour, when a party lacks the mental capacity to sign the agreement, or when one of the parties has their own legal counsel and the other does not;
The agreement is unconscionable, or so biased to one party that it “shocks the conscience;”
Unusual and inappropriate provisions are included in the agreement, such as a cap on how much weight an individual can gain throughout the marriage, or a requirement that a party perform certain chores throughout the marriage; and
“Fair and reasonable disclosure of the property or financial obligations” of one party was not disclosed to the other party.
While the above provides a very basic introduction to the benefits and process of creating a prenuptial agreement, as this process requires facing and discussing sometimes difficult financial issues, it is prudent to consult an experienced attorney to help guide you through this process. As such, if you are newly engaged and thinking about how to best protect your assets as you start the next chapter of your life, please give us a call and see if our attorneys cannot help you get off on the right foot!