Prenuptial Agreements and Virginia Law

Posted on Jun 12, 2017 by Katie Carter

Let me just say this: prenuptial agreements aren’t all that common. And, if your soon to be husband has presented you with one, you have three options:
1. Sign it as is, and hope for the best. (Generally not recommended.)
2. Don’t sign it. Walk away, and hope he’ll marry you anyway—but with full knowledge that this may be the end of your relationship.
3. Negotiate a better result.
I don’t like prenuptial agreements for a lot of reasons, but, most specifically, (and the one that’s resonating with me the most right this very minute) because they’re really a form of extortion at a time when a person is poorly inclined to think through all the possible ramifications of their actions. When you’re in love and getting married, it’s easy to think that nothing ever will go wrong. But, as any married person can tell you, the shiny newness wears off, and, after a little while, it’s not all so wonderful—even when you’re married to the perfect partner. To be cliché, marriage is hard work. And, sometimes, despite our best intentions, divorce happens. Divorce is hard enough, in and of itself. It’s even harder, oftentimes, if you’ve signed a prenuptial agreement.

“But I want to protect what I’ve earned before the marriage, and so does he.”

A lot of people tell me that a prenuptial agreement would be okay, or at least that they’d understand the need for one, if they needed to protect what they earned prior to the marriage. I get that; it makes sense. Why should you split what you earned before the marriage with your husband if it all goes south later on?

Separate Property Under Virginia Law

The law agrees with you, which is why the law specifically provides that property earned, purchased, or acquired prior to marriage is that party’s separate property. It already isn’t divisible in divorce! So, if you’re worried about your retirement, an investment property, a home, a car, a savings account, an inheritance, a trust fund, or whatever—a quick look at the law will show you that whatever was yours prior to marriage (or anything that you inherited or were given by someone other than your spouse prior to or even during the marriage) is yours separately anyway. So, it’s a nice thought, but the law has already taken care of that for you. What you’ve earned is yours separately anyway.
The only reason to negotiate a prenuptial agreement is to change the way the law would divide the things you would otherwise have a right to under Virginia law.
There’s no reason to negotiate a prenuptial agreement that gives you what the law would already allow you to receive, because those protections are already built in. A prenuptial agreement CHANGES the way the law would divide things that would otherwise be considered marital property.

What am I entitled to under Virginia Law?

Marital Property

As far as property is concerned – both real and personal – you are entitled to your marital share of whatever was earned, purchased, or acquired during the marriage. That includes money in the bank accounts, money in retirement or investment accounts, real estate, cars, furniture…well, pretty much everything that makes up a life. If you want to be super technical about it (and some people really, really do), it can go all the way down to your credit card rewards points and airline miles earned. (Yes, really—some people do go there.)
Property is marital if it was earned, purchased, or acquired during the marriage, and that holds true regardless of how a particular asset is titled. Just because he bought, say, a car in his sole name does not make the car his sole property under Virginia law. (And, of course, the same holds true in reverse.)

Would I get 50% of everything we earned, purchased, or acquired during the marriage if I didn’t have a prenuptial agreement?

Well, it’s hard to say necessarily that you’d receive exactly 50%, but what you’d receive would probably be somewhere in that ballpark. Virginia is an equitable distribution state, which means that the judge can consider equity in his or her decisions (which is a word that means something like fairness, but if you go into the courthouse arguing over what’s fair, you might get a couple chuckles)—and that could, ultimately, result in something different than a 50/50 distribution. The judge can look at the negative and positive monetary and non monetary contributions of each party to determine what each spouse deserves to receive.
Still, in most cases, judges view divorce as a business transaction, and the ultimate division of property, if it’s left up to a judge, is pretty close to 50/50 anyway. Alternatives? If you don’t go in front of a judge, you can negotiate a separation agreement—which is also a legal contract, very similar to a prenuptial agreement (except that it comes AFTER marriage, so you have all the rights bestowed on you by the law available to you)—and in that document, you and your spouse can divide your assets and liabilities in a way that works for you. Separation agreements are ideal, in many cases, because they give you the freedom to determine for yourself what a suitable resolution would look like. (And that could, potentially, result in a distribution other than 50/50).
Of course, 50/50 can look different in different cases, anyway—you might receive all of one asset in exchange for none of another, and that may be by design. If you’re negotiating an agreement, then you have the power to negotiate what works for you.
A prenuptial agreement would seek to change that. Almost all of the prenups I have seen in my practice have said that whatever is earned by one party during the marriage is his separate property, and that the other party has no right to those earnings.

In a prenuptial agreement, there’s almost always an uneven balance of power.

In every prenuptial agreement I’ve seen (though I don’t rule out the possibility that there could be a situation that is different) one party (the husband) earns a huge income that is dramatically more than what the wife earns.
In these cases, the wife (or would-be wife) is in a tricky position. A lot of times, she’s already being supported by her potential future husband, so what position could she possibly be in to refuse the proposed agreement? Her bargaining power is little to none; he could walk away, and he knows that—so, really, all the power rests with him. I don’t like that.
Ultimately, the choice to sign is always yours—and you don’t have a lot of options available to you. You either sign, walk away, or negotiate, and, in many cases, because the bargaining power of the lesser earning spouse is so dramatically different, as I’ve already said, the bargaining power there is virtually nil. Why should he agree? He already holds all the cards. (Though I’d encourage you at least attempt to negotiate, even though this probably seems like the most distasteful and unromantic idea in the world.)
Of course, this begs the question—do you even want to marry this person at all? That’s a personal question, and one I can’t answer for you, but it’s a legitimate question. If you’re considering marrying someone who won’t truly share his life with you and is insisting on you signing an agreement like this that, frankly, is more than likely to your extreme detriment, is this man husband material?

Why wouldn’t I negotiate a prenuptial agreement, if I might just have to negotiate a separation agreement later, if it all goes south?

Negotiating a prenuptial agreement now takes you out at the knees later, when it comes time to negotiate a separation agreement. Though the process may look the same (negotiating an agreement), you’ll be in a much better position later on than you are now. If you get married without a prenuptial agreement in place, you have all the rights and entitlements bestowed on you by the law—and that’s a huge protection. Then, you are in a position to negotiate because you at least have an entitlement to whatever was earned during the marriage. If you’ve got a prenuptial agreement, on the other hand, the prenup will probably say that you don’t get a share of what was earned by him during the marriage (which may very well be all there is to divide, especially if you’re not working or aren’t employed in as substantial a capacity as he is). Then, when it’s time to divorce, if it’s time to divorce, you don’t have any room to bargain—it’s already done. An agreement, once signed, really can’t be unsigned.
Prenuptial agreements are often awful. If you’ve been presented with one by your soon to be husband, definitely consider meeting with a Virginia divorce attorney to have it reviewed BEFORE you sign it. It may be unromantic, but it’s best to at least know what you’re entering into. Whether you decide to sign or not is up to you, but you should do so (or not) with full knowledge of what the consequences may be for you.
For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at (757) 425-5200.