Should I sign this prenup?

Posted on Apr 8, 2019 by Katie Carter

Prenuptial agreements are pretty commonly misunderstood. I often hear that someone should may consider a prenup if they had substantial assets before the marriage that they wanted to protect. Under Virginia law, though, property that you earned or owned prior to marriage is already separate – it’s already yours, it stays yours, and it doesn’t become marital property unless you commingle it with marital funds.

By “commingle,” I don’t mean that you used it to buy a house or other asset that then you lived in during the marriage. We could still source the funds and, to the extent that separate funds were used to purchase the home, we could trace and extract that money in the event of a divorce. Money is commingled mostly when it is placed in a regular joint bank account and spent in the regular course of business. If you purchased groceries and movie tickets and odds and ends at Home Depot with the money, it’s almost impossible to trace. In that case, if money is spent, its more than likely commingled and gone.

So, what DOES a prenup protect?

A prenup (or prenuptial agreement) sets forth how things that would otherwise be marital are divided – which is why I don’t like them.

Most of the time, when there’s a prenuptial agreement, it’s because there’s an uneven distribution of wealth. The party who earns more is trying to protect his assets from the party that earns less in the event of a divorce or separation.

Usually, I’ve seen that prenups include specific terms that, for example, disallow spousal support, or classify the marital residence as the exclusive property of one party or another. These are all things that the law would typically allow – obviously, or else, there’d be no need for a prenup, right?

What about custody and visitation?

Though I guess a prenup could include custody and visitation, custody and visitation is usually not included. Probably partially because usually when a prenup is involved, we’re talking about a second or other subsequent marriage for someone a little bit older – usually someone who already has children. That’s not necessarily the case, though. It is possible, in many cases, that children could be born to the parties, and, in the event of a divorce or separation, custody and visitation would need to be determined.

The thing about custody and visitation, though, is that everything is always modifiable based on a material change in circumstances. So, even if you agreed before your marriage (which would, presumably, be prior to the conception or at least birth of the children in question) there would be plenty of material changes that you could use to modify the agreement. Although I guess you could include it in your agreement, chances are very good it would be modified later anyway. Because of this, I generally don’t see custody and visitation included.

Can you negotiate a prenuptial agreement?

Yes, of course. Just like any other legal contract, you’re encouraged to seek legal counsel and participate in the drafting of the contract.

Also, like any other legal contract, it’s not valid and enforceable until it’s signed. So, like with a separation agreement, you can negotiate – you can say you want specific terms included or excluded from the final agreement. But, ultimately, if it’s not signed, the agreement has no force and impact.

That’s actually what I hate most about these agreements. In a separation agreement, where the parties have already separated or decided to separate, there’s an incentive to get the agreement in place – final resolution, and, ultimately, divorce.

In a prenup case, though, it doesn’t feel like an even playing field, or that there’s a mutual benefit to be derived in most cases. The higher earning potential spouse often feels like he has the lesser earning spouse over a barrel. Either agree, or no deal. In the beginning, when you still love each other and want to make things work, something like a prenup may seem like a small barrier. You can participate in negotiations, but, ultimately, you trust each other. If he says no, its not like, in most cases, you’d really walk away from the marriage entirely.

And that’s where I see women making lots of mistakes. You think you’re in love and it’ll work out and it’ll be lovely – and maybe it will! I don’t know you or him, so I’m not saying that you’re automatically doomed to divorce. You’re not! But I am saying that, in many of these cases, women cut themselves off at the knees in their desire to get to the altar. I get it – you’re in love! But then, if things don’t work out, these women find themselves in a worse position than they’re currently in. And by then, they’re older and less able to do other things (like work more hours) that would otherwise protect them.

So, what should I do? Should I sign?

Ultimately, only you should answer that question. But I do think you should consider the available options – don’t sign it (and break up), don’t sign it (and date, but don’t marry), or sign it (and deal with the consequences). You should always try to negotiate, but your future spouse may be more or less willing to consider alternatives.

Of course, his attitude (in my option at least) to listening to your concerns probably should fact in when you consider whether to go through with this anyway. If he’s concerned about you – present and future – then that should be reflected in negotiations.

A prenup isn’t always a bad thing, but there should be some provisions in there that protect you, especially if you’re walking away from some built in protections from your current life in order to marry him (like, for example, an award of spousal support from a previous husband, or independent home ownership).

There’s a lot to consider when it comes to prenups, and it’s a good idea to have a licensed and experienced Virginia divorce attorney on your side to help negotiate the terms (and even to understand the implications of the terms he proposes). For more information or to schedule an appointment, give our office a call at 757-425-5200.