What if I have a prenuptial agreement?

Posted on Jul 12, 2020 by Katie Carter


Very few things strike fear into a divorce attorney’s heart as much as the words, “I have a prenup,” unless its “I already signed the separation agreement”. Either way, it’s very, very relevant information, as what you already signed can have a significant (and sometimes terribly detrimental) impact on your entitlements.

When we speak about divorce law in Virginia, including what specific rights and entitlements apply in a general sense, we’re talking about a case where a prenuptial agreement wasn’t already signed. In Virginia, as in pretty much everywhere else, what you’re entitled to receive depends on a number of factors, including, but not limited to, exactly what terms you’ve already agreed will apply. In a contract, you can pretty much create your own set of rules that will govern how your case will proceed.

Strictly speaking, a prenuptial agreement doesn’t cover any assets you might have had prior to the marriage; those things are separate anyway. What a prenuptial agreement DOES do (and what makes it so scary!) is that it sets forth how marital property – that is to say, things that you would otherwise have had a right to – will be divided. I’ve seen prenuptial agreements that do all sorts of things, but, generally speaking, they prevent the lesser earning spouse from asking for spousal support, they hoard all the retirement wealth for the party who earned it, and they ensure that real estate purchased, even with marital funds, is disposed of in a way that benefits the higher wage earning spouse.

Very few provisions in a prenuptial agreement benefit the lesser earning spouse. And that, I think, is part of what I hate so much about them – the lesser earning spouse is ALREADY in a position that gives them diminished bargaining power, simply by being the lesser earning spouse. Financially, at least, she (or he, though I only represent women so I’ll use the female pronouns from here on out) has the most to gain by the marriage; he, on the other hand, will be in a better financial position than she if the marriage DOESN’T go forward, which gives him a lot of power. “Sign, or I walk” is a pretty powerful form of persuasion, and one that many might not be able to resist.

When you combine financial advantage with love, too, it gets even murkier. It’s easy to say, “Well, I love him, and he loves me, so this will never matter,” and sign away your rights, especially since, by their very nature, these are documents that are signed when the relationship is at its strongest.

Does it matter, if you’ve already signed a prenup? Well, I’ll say! It matters tremendously, and probably will not be beneficial. If you have to ask this question, I assume that you’re already the lesser earning spouse; the higher earning spouse having already been well advised and prepared for this eventuality.

So, what can you do?

If you signed a prenup already, the only thing you can really do is get a copy and bring it in to an attorney. You’ll want to get specific advice based on your situation. Your situation isn’t the same as other people’s; your prenuptial agreement has changed the terms of your divorce. Your contract (a prenuptial agreement is a contract!) will revise the law, and a whole different set of rules will govern your divorce.

I can’t tell you what that means, or what it might have cost you in terms of entitlements you would have had under the law, without reviewing it. There’s no “one size fits all” in these types of documents, so I can’t make guarantees or represent to you what will definitely be in it – I’ll have to see it. It WILL change how the law would apply to your case; otherwise, what would be the point in having it?

What should I do, if my fiancé presents me with a prenuptial agreement?

This may be neither here nor there, depending on where you are in the process – but, if your soon to be husband presents you with a separation agreement, you need to have it reviewed by counsel (YOUR counsel) before you sign it.

I’m not saying that you shouldn’t sign it, or you shouldn’t marry him; it’s entirely up to you. But I am saying that you should know what you’re signing, and how it impacts your rights under Virginia law, BEFORE you sign it.

In a perfect world, you’d know and understand what you were giving up beforehand. Remember, you’ll never be younger, healthier, or more recently employed. If you’re planning on leaving work or are making other alterations to your life because of your impending marriage, you’d do well to consider what the implications may be for your life 10, 15, 20 (or more!) years down the line.

Review. Negotiate. Ask questions. A prenuptial agreement is a legal contract, and establishing the terms of a contract is a process. If your husband won’t negotiate, or won’t participate in any discussion, well, that’s a sign. It doesn’t mean you can’t marry him, but you should do so with eyes wide open, don’t you think?

All things considered, prenuptial agreements matter. They matter tremendously. And your divorce could be altered significantly if you’ve signed one. So, if you haven’t signed already, take it seriously, and do your due diligence. If you have signed it, prepare yourself for some bad news, but come in and talk to an attorney today so that you can figure out what smart next steps you may still have available to you.

For more information or to schedule a confidential consultation, give our office a call at 757-425-5200.