At the outset of this discussion, I’ll admit: I take a dim view of prenuptial agreements. So, with that being said, I plan to use this article to discuss with you the various merits and demerits of prenuptial agreements.
If you’re going into this hoping to decide that a prenuptial agreement is the solution you need, then go into this knowing that I am – in general, though not always – a bit of a naysayer. Do with that what you will, but be aware of it at the outset.
Obviously, in prenuptial agreements, as in so many other areas of life, you should feel free to make the decision that works for you, and not necessarily the decision that works for a divorce attorney. At the same time, though, you should go into it knowing what a divorce attorney thinks or would advise you to do – and then either follow the advice or not, at your discretion, but with full knowledge of the advantages and disadvantages or risks associated with those decisions. A decision made with informed consent and completely accurate disclosures is typically better than an uninformed decision. At the end of the day, only you will live with this. Not your divorce attorney, or anyone else. So, with that being said, let’s discuss prenuptial agreements in Virginia.
What is a prenuptial agreement?
A prenuptial agreement is a legal contract entered into by two people who intend to marry before marriage that outlines, basically, what would happen to all the assets and liabilities from the marriage. Typically speaking, these agreements cover business interests, income, spousal support, retirement accounts, bank accounts, investments, and anything else that might be worth something later on.
Generally speaking, custody and visitation is not included for a number of reasons: for one thing, at this point, your children are likely hypothetical. For another, everything related to children – custody, visitation, and child support – is modifiable based on a material change. Certainly, the actual birth of these hypothetical children is a material change all on its own; so too would be your separation and/or divorce from your current partner. So, even if you agree now that you’ll have joint legal and physical custody and share parenting time exactly 50/50, that’s going to be modifiable. So, it’s really kind of a waste of time to include. I’d strike any provision that involved custody and visitation of children who are still unborn. It’s ridiculous.
Basically, the point of a prenuptial agreement is to specify some other division than what is provided for according to the law in Virginia.
If you don’t have a prenuptial agreement, it doesn’t mean your assets and liabilities don’t get divided, it just means that the laws of the Commonwealth of Virginia will govern your divorce, rather than particular rules that you define and agree to in advance.
Most couples do not have a prenuptial agreement. Most divorces in Virginia are governed by the laws of Virginia. Whatever Hollywood might have you believe, prenuptial agreements are the exception and not the rule.
Why is that bad? It sounds good to have a prenuptial agreement. You can make your own rules.
Hey, to each their own. Personally, I think a prenuptial agreement is bad – or at least, is generally bad – because in the majority of the cases that I have seen, there has been a tremendously uneven amount of bargaining power between the two would-be spouses.
When one party has a lot more than the other party, the higher earning spouse likes to spring a prenuptial agreement on a lesser earning spouse. The lesser earning spouse has fewer resources, less advisors (financial advisors, wealth management professionals, etc) to provide advice, and, ultimately, fewer options available.
Sign this agreement – or walk away, foregoing both the marriage and the quality of life that you could have had by virtue of your marriage. Sign this agreement today, while you’re happy, but without regard for the way that things might change later on, and the way that the agreement could designed to leave you virtually destitute and with no recourse.
Look… I know people have different feelings about spousal support, but the reality is that it can be an absolute lifeline, especially in a case where there’s really disparate earnings between the parties, or where one has curtailed her career to support the marriage, family, and home. To waive it now, before you even know what kind of position you might be in later on, is difficult to do. Most prenuptial agreements include a waiver of spousal support, as well as retirement earnings.
Call me old fashioned, but I believe that marriage is – or should be – a true partnership. Sure, one party may earn more in dollars, but that doesn’t mean the other party’s contributions are without merit. In general, Americans undervalue the contributions of women, both professionally and domestically. I often find that women are some of the worst about it, too – though often not intentionally. We’re way too willing to diminish the value of our own contributions. It’s not a partnership if you enter into the relationship with no intention at all of sharing the things you earn together by virtue of your partnership. Like I said – old fashioned.
But doesn’t a prenuptial agreement keep the parties from having to share things that the other spouse should have no right to anyway, like money they earned before the marriage?
No – because the law already does that. Under Virginia law, anything you earned prior to marriage is separate property anyway! So, whatever money you have in a separate account, or even a house that you might have purchased prior to the marriage, is still separate property.
So is anything that you might inherit or be given by someone other than your husband. So are trust funds. So, that’s not really a thing; the law already protects those type of assets. It’s not like, on the day you get married, all the things that either of you own suddenly become marital property. No, anything you own prior to marriage is yours separately, and you take it with you when you leave as long as it still exists.
It still sounds nice to set your own rules. It’s not like you have to agree to waive spousal support.
It’s true. An agreement – any agreement – is a negotiation. You can reject terms you don’t like, modify them to the point that you can agree to them, or accept the terms the way they’re drafted. He can’t make you agree.
It is always a concern to me that the uneven nature of the relationship will cause one party to feel like they’re over a barrel – “do this, or we don’t get married” – which I don’t like at all, but it is possible to negotiate.
In fact, I recommend that you do. Preferably, with a lawyer who will help advocate for your best interests.
Are there any situations where a prenuptial agreement can be a good thing?
I do think there’s a difference in a marriage where there’s two young (or relatively young) people starting out versus people getting married later in life. For older couples, who’ve maybe been married or divorced or widowed before, and who may have children, the priorities might look a little different.
In that case, it’s less about leaving the spouse with nothing (denying them spousal support and retirement income, for example) and more about preserving the way the estate would be divided. Usually, these things are done to benefit the children from the previous relationships.
In any case, it’s a legal contract that will be binding, so I think it’s a good idea to work with a lawyer, to participate in the wording of any included provisions, and be all around informed about the implications of signing a prenuptial agreement.
I do think it’s always worth asking yourself whether it’s worth having a man under the conditions that he’s imposing. What is he telling you about how he values you and values your contributions? It’s not that I think a prenuptial agreement is anti-romance, but it is – to me, anyway – that these agreements often overvalue one partner at the expense of the other. If he’s just a black and white person who needs to see this in writing, surely he can understand that you need to see some reflection of your own worth and value included in the agreement, too.
Stand up for yourself. Don’t just accept his first offer. Don’t be so embarrassed to talk about money or to negotiate over your agreement that you accept too little. Don’t assume that you know how the law would handle a situation without verifying. Talk to a lawyer. Get advice. And then decide whether you’ll sign an agreement.
For more information, to request a copy of our divorce book (because that’s where you can learn how things are typically divided under Virginia law), or to schedule an appointment, give us a call at 757-425-5200.