How to get a prenuptial agreement in Virginia

Despite the Beatles' message that "All You Need Is Love," marriages can often become complicated. Getting a prenuptial agreement can give you and your prospective spouse peace of mind that things will work out, even if the marriage ends. 

This guide will take you through the process of getting a prenup in Virginia. It also explains the importance of understanding the state’s legal requirements and working with an experienced attorney to get your premarital agreement executed. 

How to get a prenup in Virginia in 6 steps

Follow the six steps below to get a legal and valid premarital agreement in Virginia. 

1. Get independent legal counsel

It is highly advisable to get separate legal representation. Your lawyer can advocate for your best interests and personal rights and ensure that your prenup meets the state’s legal requirements. They can also advise you on using fair terms and attest to the fair and reasonable disclosure of assets and liabilities. This will prevent arguments in the event of separation or marital dissolution. 

2. Disclose and discuss division of all assets and liabilities 

A valid premarital agreement requires reasonable disclosure of each party’s assets and liabilities. Assets should include real or personal property like income, bank accounts, retirement plans, furniture, and artwork. Liabilities include car loans, mortgages, school loans, or credit card debts. 

After each person has disclosed their assets and liabilities, address how they will be divided. Outline who will assume responsibility over any marital debt. For example, who will pay the home loan in case of a divorce? Is the burden on the spouse who took out the loan, or will it be shared between the two? 

3. Address spousal support 

Suppose prospective spouses don't address spousal support in their prenuptial agreement and head for divorce. In that case, the circuit court judges will decide if spousal support is necessary and set the amount for it.
The judges consider a list of factors, like the length of the marriage and each spouse’s income, needs, and obligations, to decide how much spousal support to award and for how long.

In Virginia, both parties can expressly waive their right to alimony; in most cases, the court will uphold this. It shall not be enforced if the premarital agreement leaves one spouse dependent on the state (like on Medicare or food stamps).

4. Define community and separate property 

Virginia law allows you to define community and separate property in the agreement. Community or marital property is any property acquired by either spouse after marriage.

Any real or personal property (income, savings, real estate) that one owns before marriage is considered a premarital asset or separate property. If you wish to maintain full ownership over acquired wealth from premarital assets, investments, or a family business. Then, it's best to define them as separate property so they remain separate from marital assets.

If you didn't specify property division in a divorce, Virginia state will split all marital property using equitable distribution laws. This does not mean a 50-50 split. The judge considers several factors when dividing assets.

• Length of marriage
• Contribution of each spouse to household and marital assets
• Age and health of each spouse
• Income of each spouse
• Behavior of each spouse

Yes, you read that right. VA Code 20-107 allows Virginia divorce courts to use any bad behavior, like committing a crime or abuse, against the spouse who did it.

5. Agree on other marital issues 

Use the prenuptial agreement to discuss other important legal matters like creating an estate, selecting a beneficiary, or day-to-day marital and financial responsibilities and rights. For instance, you can address how the two of you will file taxes and whether you'll have a joint bank account. Discussing these matters sets clear expectations, reduces stress, and minimizes future disagreements. 

6. Draft, review, and sign the premarital agreement

Once you have agreed to the terms, get an experienced attorney to draft the premarital agreement so you get it right. Set aside enough time to review the document (ideally one to two weeks before the wedding). The written agreement must be voluntarily signed by both parties before a witness.

Premarital agreements in VA: What you need to know

The Virginia Premarital Agreement Act (VA Code 20-147 to 20-155) sets the guidelines on what makes a prenup legally valid and how and when the agreement shall be enforceable. The code also dictates the issues a Virginia prenup can address.

A Virginia premarital agreement can address the following matters: 

• Property rights and responsibilities: Most engaged couples use the prenup as a property settlement agreement to protect their ownership rights and control property. They also use it to decide each person’s financial obligations and how marital property will be divided in case of separation, marital dissolution, or death.
• Management of property: The agreement can include guidelines on how to buy, sell, use, transfer, create a security interest in, or control property and other significant assets like stocks, retirement plans, and real estate.
• Spousal support: A premarital agreement can address spousal support; the couple can even set an alimony amount and duration length for it. 
• Creation of wills and trusts: Couples can set directives on creating and managing wills, trusts, and other estate planning matters. Such agreements can also address whether the surviving spouse gets inheritance rights over a deceased spouse's estate.
• Life insurance policy: A premarital agreement can also address the ownership rights to the death benefit from a life insurance policy if one spouse dies.
• Choice of law: The couple can use a prenup to decide on the law governing the interpretation and enforcement of the premarital agreement.
• Additional agreements: Any matter related to personal rights and obligations, such as who will be responsible for raising the kids or paying major expenses, can also be included. These terms should not break public policy or include any statute imposing criminal penalty (any punishable act).

The state's Premarital Agreement Act doesn't require one party to give something in consideration to the other party as part of the prenup. Consideration means giving something of value to each other as part of the prenup. 

Do you need a prenup? Top benefits

The media often portrays a prenuptial agreement as a contract for celebrities or the extremely wealthy. Many perceive it to be something that encourages divorce. But that’s not the true intent of a prenuptial agreement. The real value or merit is to encourage open communication, minimize conflict during the marriage, and avoid expensive divorce proceedings.

Here are some advantages of signing a Virginia prenuptial agreement:

• Clarifies each person's property or financial obligations
• Helps prevent expensive court battles
• Provides clarity on asset and liability division
• Sets marital expectations and obligations

You should consider getting a prenup if any of the following circumstances apply to you or your prospective spouse:

• One or both parties have children from previous relationships
• One or both parties have major debts
• One spouse owns a business
• One spouse has significantly more income and assets

Can Virginia premarital agreements address child custody?

Like the majority of states in the U.S., Virginia prenuptial agreements can't pre-decide child custody, child support, and visitation matters. A Virginia court will make the final judgment on these issues, and this decision is based on the child’s best interests and needs at the time of the divorce. 

Do you need a prenup? Top benefits

The media often portrays a prenuptial agreement as a contract for celebrities or the extremely wealthy. Many perceive it to be something that encourages divorce. But that’s not the true intent of a prenuptial agreement. The real value or merit is to encourage open communication, minimize conflict during the marriage, and avoid expensive divorce proceedings.

Here are some advantages of signing a Virginia prenuptial agreement:

• Clarifies each person's property or financial obligations
• Helps prevent expensive court battles
• Provides clarity on asset and liability division
• Sets marital expectations and obligations

You should consider getting a prenup if any of the following circumstances apply to you or your prospective spouse:

• One or both parties have children from previous relationships
• One or both parties have major debts
• One spouse owns a business
• One spouse has significantly more income and assets

What makes a prenuptial agreement valid and legal in Virginia?

Virginia has adopted the Uniform Premarital Agreement Act ("UPAA"). For premarital agreements to be considered valid and legal, they need to meet the following criteria: 

• Voluntarily signed by both parties with the intention of marriage
• There's fair and reasonable disclosure of property or financial obligations
• There was no use of pressure or force 
• The agreement is fair to both parties 
• It’s a written document 
• It's notarized
• Signed in front of a witness 
• There was no consideration

Virginia doesn’t recognize or enforce only verbal (spoken) agreements. However, there's an exception to this. If the premarital agreement terms are contained in a court order endorsed by both parties or have been transcribed by a court reporter, the agreement shall be enforceable.

FAQs

These commonly asked questions will increase your understanding and help you get a legal and enforceable Virginia prenup. 

What is a prenup? 

A premarital agreement is a legal, written agreement signed by prospective spouses. Premarital agreements are also known as prenuptial agreements or prenups. Virginia premarital agreements are commonly used to address marital issues and protect one’s property or financial obligations. Such an agreement becomes effective on your official wedding day.

Can I draft my own prenup?

Yes, you can write your own premarital agreement. But remember, this is a legally binding document, and any mistakes can result in unpleasant consequences (loss of finances or personal property), or it may not be enforceable. Drafting a legally sound and fair Virginia premarital agreement requires the knowledge and skills of an experienced family law attorney.

How much does a prenup cost in Virginia?

Simple prenups can cost around $500, but some complicated ones can run you upwards of $2,500. The cost might change based on your location, the lawyer’s experience, a couple’s assets and liabilities, and the complexity of the terms.

Divorce lawyers in Virginia charge $328 per hour. While the initial cost of getting a prenup might seem like a sticker shock, it’s much less than the cost of undergoing a lengthy divorce process. Just FYI, according to a 2021 Institute for Family Studies report, Virginia is the eighth most expensive state for a divorce, with the average divorce cost being $11,584. 

Can you amend a Virginia prenup? 

Virginia law permits prenuptial agreements to be modified, changed, or revoked after they're signed and go into effect. To make the change, both parties must sign a new written agreement voluntarily; the updated premarital agreement shall state that it overrides any prior agreements. The amended agreement also needs to pass the state’s legal requirements.

LegalZoom attorneys can help you update your marital agreements and simplify the amendment process.

What voids a prenup in Virginia?

A premarital agreement will be considered invalid if:

• It's a void marriage (not a legal marriage)
• Hinders rights protected by law (mandates how the partner will vote)
• Includes illegal activities
• Promotes unrealistic clauses (spouse maintains a specific appearance)
• Includes child custody provisions
• One party proves they were forced to sign the agreement by the other party
• One party proves they weren't provided full disclose of property or financial obligations of the other party; neither did they expressly waive their right to this

Can I get a prenup after my marriage? 

You can't get a premarital agreement after marriage, but you can sign a postnuptial agreement, also known as a marital agreement. Marital agreements are written agreements entered into and signed by both parties. They provide similar benefits and are enforceable by the courts to the same extent as a prenup. But they take effect immediately upon signing.

Premarital agreements act as a communication tool between prospective spouses on how they will handle married life. They help establish a solid foundation where both parties understand each other's perspectives and expectations. Being on the same page from the beginning minimizes sources of conflict and helps you build a marriage that values love, financial transparency, and open dialogue.