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Prenuptial and Postnuptial Agreements

Most people don’t know the divorce laws until they have the misfortune of going through a divorce.  The concepts of marital property and spousal support are not taught in high school.  People who go through pre-marriage counseling generally don’t get any exposure to the legal framework around marriage.

If people knew even the basics of marriage law they would at least consider having an agreement that better fits their circumstances than the Virginia Code.   The wealthy use prenuptial agreements to preserve their property.   Postnuptial agreements are less common and often made while the parties are separated but attempting a reconciliation so that if it fails, they know what the terms of the divorce will be.  

The three key questions that get sorted out in court when people divorce are what to do about living arrangements for their kids, how to divvy up their property and how much support (if any) will have to be paid.  Most states, including Virginia, allow people to make their own agreement on these points.   The court here is prohibited for ordering anything about spousal support or property division that is different from that agreement.  Only the key questions about the children can be changed by the court.  Even then, the judges are very deferential and it’s rare for them to override what the parties themselves have agreed.

In Virginia Beach one of the last hearings before the trial is the pretrial conference.  The lawyers and the judge do a little planning for the trial but, in divorce cases, the main reason for the get together is it provides an opportunity for the judge to beseech the parties to compromise their differences and reach an agreement.  The main point the judges make is that they are strangers who know nothing of the family and can only learn a little during the trial so the parties themselves can do a better job of deciding how to sort out their situation.

Reaching a fair agreement at that point is complicated by all the ill will that has caused the split.  Often one spouse has been unfaithful or has completely moved on with someone else.  The emotions may cause one spouse to use the legal process to torment the other.  So making the plan is likely to be much easier when relations are smoother.

But what couple in love wants to talk about getting divorced before they even get married?   Much like confronting the uncomfortable inevitability of death keeps people from making a will, the awkwardness of this conversation keeps people from doing a prenuptial agreement.  The questions that have to be answered are uncomfortable.  

The central issue is marital property.  Under Virginia’s marital property law, any wealth that results from the efforts of the parties during the  marriage is marital property.  A common example is military pensions.  The portion of the pension earned during the marriage is marital property and the court will almost certainly divide it between the parties in a divorce.  If, however, the prenuptial agreement says that all compensation earned by each party in their own career will be their separate property, then this rule will not apply.

When the spouses come into the marriage with property they need to be careful if they want to keep it if there is a divorce.  The general rule is that such property is separate and cannot be divided by the court.  Problems can come up, however, if the owning spouse does work that makes the property more valuable.  A prenuptial agreement can prevent the increase in value from becoming marital property.  Things can be particularly complicated if you mix marital and separate property such as when one spouse provides the down payment for the marital home.

People who are entering into second marriages especially can benefit from a prenuptial agreement because they often have property they want to keep separate.  Generally speaking, the older people are the more likely it is that they could benefit from having an agreement.  I have had cases where a client who is nearing retirement age suddenly has problems because a marriage they entered into recently has failed.  

One thing that going through the process of making an agreement does is it gives people a chance to see their intended spouse’s true character.  If they push hard for an agreement that strongly favors them, that is a warning that they are likely to be a selfish spouse.  The self-centered, selfish spouse frequently shows up in divorce cases.  So it might be a good idea to pass on the marriage and keep looking.

I strongly recommend that both parties consult a family law practitioner about any agreement they are thinking of signing.  In most cases, an hour should suffice for the lawyer to go through it and explain the effect it will have.  Except in very rare situations, the court will hold the parties to their bargain so you want to know for sure what exactly the agreement means for you before you sign it.

About the Author

Robert Jeffries
Robert Jeffries