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PREMARITAL AND MARITAL AGREEMENTS

Premarital and Marital Agreements are both recognized in the Commonwealth of Virginia.  An engaged couple or a married couple may wish to enter into a Premarital Agreement (sometimes referred to as a “Prenuptial Agreement” or “Pre-nup”) or Marital Agreement, respectively, in order to protect their respective assets. 

No matter the reason for wishing to enter into a Premarital Agreement or Marital Agreement with one’s to-be spouse or spouse, respectively, an individual should be candid with his or her to-be spouse or spouse and fully communicate the reason for wishing to enter into such an agreement in order to avoid any unintended misunderstanding due to the sensitivity of the subject matter.

PREMARITAL AGREEMENTS

If a to-be married individual is already well-established in his or her career field, then such individual may wish to enter into a Premarital Agreement to protect those assets which he or she has already acquired, as well as assets which he or she anticipates acquiring during the marriage.  Another scenario that may arise is when one or both of the to-be married individuals has children from a prior marriage to whom they wish their assets to pass at death.

The Premarital Agreement itself may be expansive or narrow in its coverage depending upon the concerns of the to-be married parties.  A Premarital Agreement may include the rights and obligations of the to-be married parties with regard to property and the disposition of property upon the occurrence of certain enumerated events, such as divorce or death.  Specifically, the to-be married parties may choose to address the following matters (however, this is not an exhaustive list):

• Disposition of a business interest in order to ensure that the business interest maintains its identity as separate property following the marriage
• Who will retain ownership of the residence in the event of divorce or whether instead the residence should be sold and the proceeds divided between the parties in the manner set forth in the Premarital Agreement
• Division of retirement benefits

Requirements of a Premarital Agreement

In order for a Premarital Agreement to be effective in the Commonwealth of Virginia, certain formalities must be satisfied in accordance with the Premarital Agreement Act set forth in the Code of Virginia, 1950, as amended.  A Premarital Agreement must be in writing and signed by both parties, and shall only become effective upon the marriage of the parties to the Premarital Agreement.  In addition, an effective Premarital Agreement may be amended or revoked only by a written agreement signed by both parties. 

Although the prerequisites to formation of a Premarital Agreement in the Commonwealth of Virginia are not extensive, the to-be married couple should be aware that a Premarital Agreement is not enforceable under certain circumstances, such as when an individual did not voluntarily execute the Premarital Agreement.

MARITAL AGREEMENTS

Just as an engaged couple may enter into a Premarital Agreement, a married couple may enter into a Marital Agreement.  A spouse may wish to enter into a Marital Agreement to protect those assets which he or she has acquired during the marriage independent of his or her spouse, such as receipt of a family inheritance.  In addition, one or both of the married individuals may have children from a prior marriage to whom they wish their assets to pass at death. 

Requirements of a Marital Agreement

The formalities which must be adhered to in order for a Marital Agreement to be effective are the same formalities that apply to a Premarital Agreement, and the matters which may be addressed in a Marital Agreement are the same matters which may be addressed in a Premarital Agreement.  However, a Marital Agreement, unlike a Premarital Agreement, will become effective immediately upon its execution since the parties are already married.

© 2010 GANDERSON LAW, P.C.