It doesn’t happen all that often, but every so often we talk to a woman who has already signed and negotiated a prenuptial agreement. Usually, when it happens, the woman doesn’t let us know she has signed a prenup until after we’ve already had most of our initial consultation. Then, she’ll say something like, “Well, I signed this, but it was years ago, and anyway I didn’t consult with a lawyer about it. It doesn’t mean anything, does it?”
Those days (and, like I said, they are few and far between) are some of the most difficult. Those days are right up there with the days where the woman comes in and tells us she has already signed an agreement, but that it’s terrible and she’d like to look into other options now, please.
Quite simply, it’s just not that easy. Whatever you’ve signed—whether it’s a prenuptial agreement, a marital agreement, or a separation agreement—won’t be that easily unsigned. In fact, it’s virtually impossible to unsign an agreement later on. It doesn’t really matter whether you’ve read it, whether you understood it, whether you hired an attorney, or whether you wouldn’t have signed it except that you just felt you had to because he was pressuring you.
After all, what would be the point of contracts at all if we could easily say, “oh well, I didn’t read it, did I?” and get out of doing whatever we promised we’d do? The point of signing a contract is, quite simply, to obligate us to do something, and it really wouldn’t be fair to allow us to change our minds after the fact, to the detriment of the party with whom we already negotiated. For more information about contracts and how they operate under Virginia law, click here.
So, what IS a prenuptial agreement?
Whether we’re talking about a prenuptial agreement (an agreement negotiated BEFORE marriage to determine how assets and liabilities would be divided in the event of a divorce), a marital agreement (an agreement negotiated DURING marriage to determine how assets and liabilities would be divided in the event of a divorce), and a separation agreement (an agreement negotiated after separation to determine how assets and liabilities will be divided in the upcoming divorce), the objective is the same – to clear up ambiguity or to alter the law regarding how everything will be divided.
Isn’t a prenuptial agreement a good thing? It protects you, right?
There are many proponents of prenuptial agreements in general who say that it’s best to get into a relationship that way, so that no one has any illusions. There is, I’ll admit it, something to be said for knowing what to expect if the worst happens—at least no one can say that they went into it blindly. Still, in general, prenuptial agreements make me nervous for a lot of reasons. For one thing, you don’t have a crystal ball—so it’s hard to set in stone today what’s going to happen ten years down the road (if it happens at all). For another thing, in my experience, prenuptial agreements are negotiated when there is already an unequal bargaining power. Usually, there is one spouse that is hell bent on protecting something, and the other just wants to do whatever it takes to make sure the marriage still takes place.
It reminds me of Charlotte and Trey on Sex and the City, when Charlotte is talking to Miranda, Carrie, and Samantha about what she’s worth in the event of the divorce. According to that prenup, Charlotte would have gotten an increasing percentage of $500,000 for every year that she and Trey were married—including a bonus for sons born of the marriage (I’ll never forget Carrie asking, “Well, how much for a girl?”). By the time that Bunny McDougal (Trey’s overbearing and domineering mother) forced the issue, Charlotte had already fallen in love with Trey, picked out a ring from Tiffany’s (“All righty!” she says), and told everyone about the engagement.
Charlotte does negotiate a better offer with Bunny (Trey is conspicuously absent from this whole process), but there’s no doubt that she feels disadvantaged by the way it takes place. She has no idea a prenup is on the table and then, all of a sudden, it’s a major factor. What is she supposed to do? Say no, and walk away from a man she believed at the time to be the love of her life? Though she does negotiate better, which is more than many women are able to do, there’s no doubt that there’s some uneven power there—and Charlotte does eventually cave to the pressure and signs it.
I’m not sure what most people think a prenuptial agreement protects them from. When I ask people, they usually say something vague like, “Well, I want to make sure if I go, I can take whatever I brought into the marriage with me.” But…the law, in Virginia at least (and probably most everywhere, but you’d want to check with a licensed attorney from the sate in question) already provides you with that protection. Whatever you earned, purchased, or otherwise acquired prior to marriage is your separate property; it’s not subject to division in the divorce. Likewise, any gift you received from anyone other than your spouse, or any inheritance or even a personal injury settlement, is also your separate property.
Usually, prenuptial agreements specify how things will be divided in the event of a divorce—and, in my experience, they require the parties to agree to something different than what Virginia law allows.
(Otherwise, of course, there’d be no need—you’d just follow Virginia law when/if you got divorced.) I’ve seen prenups that waive spousal support, and that require each party leaves with his or her own retirement (and the other spouse doesn’t get a share of it).
So, all that to say that, yes, if you’ve signed a prenuptial agreement, it certainly means something.
I signed a prenuptial agreement. What does it mean?
I’m not sure! Although I’m sure it means something, I can’t tell you exactly what it means without reading it first. Every prenuptial agreement is different, and has different provisions and different conditions attached to it.
Did you waive spousal support? Did you waive your right to his retirement? Did you specify how the sale of the house will be completed? I would need to read it first to know what is involved in your particular case.
I signed a prenup, and now I want a divorce. What should I do now?
You should probably consider scheduling a consultation with a licensed Virginia divorce attorney to figure out what your rights are. Your case is different from other cases where a prenuptial agreement hasn’t been signed, and you’re going to find that your rights are dictated based on the terms of the agreement you’ve already signed. You may know, from reading it yourself, some of the limitations, but you’ll want to talk to someone one on one about your particular case to get an idea of what you should do as you begin to move forward.
For more information or to schedule a consultation with one of our licensed Virginia divorce attorneys, give our office a call at (757) 425-5200.