Until fairly recently, only super-rich couples with substantial non-marital property assets bothered with premarital agreements, particularly because Virginia laws were very subjective. One family law judge might interpret an agreement very differently from another judge, even in the same county. And, if the couple moved across state lines, results were even harder to predict.
Then, along came the Uniform Premarital and Marital Agreements Act. Roughly thirty states, including Virginia and most other Atlantic Seaboard states, have adopted the UPMAA. Now, the drafting process is much more streamlined. Additionally, it is much easier to predict results if one spouse tries to overturn the agreement. It’s even relatively easy to predict results in other UPMAA states.
Today, if either spouse has been married before, a premarital agreement is probably a necessity. These agreements are much more than “divorce insurance.” Instead, they put the relationship on a solid legal and financial foundation.
What a Premarital Agreement Can Do in Virginia
Many people think that premarital agreements are exclusively about financial matters. Indeed, most of these pacts cover this subject intensely. Money is one of the leading causes of divorce in Virginia and elsewhere. A premarital agreement can largely remove financial disputes from the equation. Furthermore, the timing and environment of a premarital agreement allows couples to make evidence-based decisions about money, as opposed to emotional decisions.
But premarital agreements do not begin and end with family law issues like alimony and property division. These contracts may also cover inheritance and succession matters. For example, Husband may not want to keep children from a prior marriage from inheriting part of a family business. But that’s what could probably happen, unless Husband has a premarital agreement to the contrary. Many people in this situation also make wills, trusts, and other executory documents. That way, their wishes are clear.
Premarital agreements may cover just about any subject matter arising in a marriage, but their terms still must not be against public policy. Child custody is one example of that exception, as all custodial provisions must be in the best interests of the children, and not in the best interests of their parents. While some courts may “rubber-stamp” parties’ agreements on custody, if that agreement comes from a years-old premarital agreement, the court may insist on a deeper inquiry into the children’s best interests.
Breaking a Premarital Agreement in Fairfax
Very few contracts are completely ironclad, and that’s certainly the case with premarital agreements. However, Virginia family law has a very strong presumption in favor of spousal agreements. Most judges uphold these pacts whenever possible. So, if a spouse wishes to challenge a premarital agreement, that spouse must normally establish one or both of the following:
- Involuntary: Intense pressure to sign an agreement could render it involuntary. But in this context, “involuntary” usually means “incomplete.” If one spouse withheld vital information, and the challenging spouse could not get the information elsewhere, the agreement may be involuntary. As a general rule, involuntariness is difficult to prove if both spouses had a lawyer.
- Unconscionable: A 60-40 split is uneven, but clearly not unconscionable. In contrast, a division like “I get the property and you get the debts” is shockingly unfair. Everything else is somewhere in the middle. In addition to blatant one-sidedness, the challenging spouse must also prove that the agreement was unconscionable when it was made. This family law issue sometimes comes up with regard to stock options and other such property items.
Most premarital agreements have severability clauses. So, if a Virginia judge invalidates one part, the rest remains in effect.
Contact an Experienced Lawyer
A premarital agreement could make your marriage stronger. For a free consultation with an experienced family law attorney in Fairfax, contact Duff & Kronfeld, P.C. We routinely handle matters in Fairfax County and all surrounding jurisdictions.