Premarital agreements are basically contracts entered into prior to a marriage that  establish certain rights or limitations in the event of a future divorce.  Virginia Code § 20-149 sets forth the formalities required for a premarital agreement.  “A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage.”  Virginia Code § 20-150 establishes the allowable scope of any premarital agreements.   Parties to a premarital agreement may contract with respect to:

1. 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;

2. 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;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. Spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Notice that Virginia Code § 20-150(8) is a catch-all that pretty much allows the parties to agree to anything with certain limitations.

Premarital agreements are often used one of the parties has substantial pre-marital assets or liabilities that need to be protected from equitable distribution or substantially higher income than the other party that could significantly impact spousal support in the event of divorce.  Another reason to consider a premarital agreement is that it may serve as a tool to simplify and add predictability to the divorce process for those who are uncomfortable or unhappy with current legal policies and procedures in divorce.

Although many consider pre-marital agreements unnecessary, the high rate of divorce in our country indicates that they may not be such a bad idea.  This is especially true with respect to second or subsequent marriages, which have a higher divorce rate than first marriages.  Paying an attorney to prepare a premarital agreement almost always leads to significant cost savings in the event of a divorce.

Here is a basic list circumstances that may indicate the propriety of having a premarital agreement:

  1. You or your partner has substantially more premarital wealth or substantially higher income.
  2. This is a second or subsequent marriage for you or your partner.
  3. You or your partner has substantially more debt.
  4. You or your partner own part of a business or professional practice.
  5. To protect your estate plan.
  6. You or Your partner is planning to quit a job and give up income and/or work experience in order to raise children.

If any of these reasons applies to you then you should consider the possibility of a premarital agreement.   If you have any questions or concerns about premarital agreements or the process of obtaining one, please contact one of our experienced family law attorneys who can assist you in making an informed decision.