Christmas is a pretty popular time of year to get engaged. If your engagement ring is coming with a little bit more fine print than you expected, you’re in the right place.
A prenuptial agreement is a legal contract – like any other contract – and it basically defines the rules that will apply to a specific set of circumstances. In this instance, a prenuptial agreement sets forth the rules that will apply to the breakup of your relationship, if it ever happens.
Of course, there are already rules that deal with what happens when a marriage dissolves. In fact, that’s kind of the business that family law attorneys are in every single day of our lives. We use the law (as in, the law prescribed by statute and case law) to determine how assets, liabilities, and responsibilities will be divided between the former partners of a marriage. It’s called divorce.
If there are already rules governing how a divorce should take place, why do people need prenuptial agreements?
You don’t need a prenuptial agreement, unless you don’t like the way the law handles a particular issue. In general, prenuptial agreements are used to ensure that the normal laws that govern divorce are not applied.
A lot of people seem to think that prenuptial agreements are fairly common (amongst non-super rich non-celebrities, they’re not) or that they do basic things that most people would agree are important, like protect the money that a wealthier spouse brings into the marriage.
In Virginia, we classify property as marital, separate, or hybrid. Anything you bring into the marriage is already separate, as well as anything you’re given (by someone other than your spouse), or anything that you inherit. The law already protects that as the separate property of the spouse to whom it belongs. That’s not what a prenuptial agreement does.
When we’re talking about a prenuptial agreement, we’re talking about modifying the way the law would divide marital property, because that’s property that both parties of the marriage would otherwise have an interest in. Marital property is anything that is earned, purchased, or acquired during the marriage – so, as you can imagine, it covers a lot of important assets.
It often also deals with support – as in, removing the right of a party who might otherwise be entitled to receive support from receiving it.
Prenuptial agreements sound kind of shady.
In my experience (and, just to be clear, I can’t speak for all of the other attorneys with whom I work), a prenuptial agreement is an opportunity for a higher earning spouse to dangle something really cool in front of a lesser earning potential spouse and basically hold them hostage over it.
“You don’t get this beautiful marriage unless you agree to these terrible terms and conditions.” Sounds like love, right? Except, all too often, the lesser earning potential spouse is both (1) less able to afford to negotiate the prenuptial agreement herself, and (2) too in love with the higher earning spouse to be able to contemplate the alternative of signing it.
In a lot of cases, too, the lesser earning spouse is already somewhat dependent on the higher earning spouse, which puts them in the position of getting married (which is risky) or walking away (which is also risky, and immediately so).
Then why do celebrities and the mega rich get prenuptial agreements?
For celebrities and the mega rich, it’s a different set of circumstances. At least, in those types of cases, the parties are on more equal footing, are both able to retain lawyers to advocate for their position, and can really understand the consequences of their choices. (To be clear – not because they’re smarter, but because they’re better equipped with lawyers and other advisers!)
In these types of prenuptial agreements, we see provisions that protect BOTH parties. Hey, maybe they need it – or at least, need the transparency that a prenuptial agreement provides. I don’t represent celebrities or the mega rich, and can’t honestly speak to their specific concerns.
I can tell you, though, that MY specific concerns usually relate to the lesser earning spouse, and whether she’ll really be empowered to get what she needs through the process.
Does your firm handle prenuptial agreement cases?
Yes, we do. It’s not a major part of our practice, because for most middle class people, prenuptial agreements aren’t that common. But we do.
Prenuptial agreements are super important documents. If you sign one, it’ll impact the way the assets, liabilities, and responsibilities are divided between you in divorce. No matter your financial circumstances, you’ll at least want the prenuptial agreement reviewed before you sign it.
It may be that you ultimately feel that you can’t walk away from the marriage. That may be a decision that you feel you have to make. It may also be that you have more room for negotiation – or flat out rejection of the prenuptial agreement – than you realize. Regardless, you need to talk to a lawyer, have an opportunity to have your questions answered, and understand the potential ramifications of the document you’re signing.
To learn more about how the law works in traditional divorces, request a copy of our book or attend a divorce seminar – that may also help shed some light on the ways in which your proposed prenuptial agreement differs from the way the law in Virginia would handle things.
It’s risky. Be careful.
For more information or to schedule a consultation, give our office a call at 757-425-5200.