In the event of a divorce, without an agreement between the parties, courts will decide matters of property division, spousal and child support, and child custody. Instead, spouses can choose to enter into marital agreements before marriage, or after marriage but before separation, to avoid the court process in the event the couple divorces.
Premarital, or prenuptial agreements, are agreements a couple enters into before getting married that become effective once the parties are married. They provide couples an opportunity to plan for their upcoming marriage and potential divorce. The agreement can discuss issues such as the role of each spouse in child rearing, what will be classified as separate and marital property, property division after a divorce, and the allocation of labor and resources during the marriage.
While couples typically don’t go into marriage expecting divorce, it can be beneficial to plan for that occurrence while the relationship is in a positive place rather than waiting until a divorce occurs when a relationship is likely to be more tense and divisive. A premarital agreement can help protect the rights of each spouse in the event of a divorce and help ensure that property division after divorce will be fair and based on the spouses’ mutual agreement.
The Virginia Code establishes the topics that a premarital agreement can cover, which includes:
- The rights and obligations of each of the parties in any of the property of either or both of them;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- Spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
A premarital agreement can address child support and child custody and visitation issues for any future children, but the agreement may not be enforced. If the parties separate, they can choose to abide by the terms they set in the agreement. However, in the event they disagree and the court becomes involved, the court will make child support and custody decisions based on what is in the best interests of the child, based on various factors, and not rely on the agreement.
The existence of a premarital agreement has many benefits in the event the couple ultimately chooses to divorce. With a premarital agreement that covers necessary issues, such as property division and spousal support, the divorce process will likely be expedited and less costly. If the parties are able to agree to all of these terms then the court is not required to make the decisions for the parties, so typical procedures involved in court hearings are avoided (such as discovery and the presentation of evidence).
The parties can revoke or revise a premarital agreement after they’re married, as long as both parties agree and the new agreement is in writing.
Postnuptial agreements are generally the same as premarital agreements, except they are entered into after the couple is already married. These agreements typically cover the same topics as those discussed in prenuptial agreements and offer the same benefits. There are various reasons why a couple may choose to enter into a postnuptial agreement after marriage, but common reasons include a spouse inheriting a sizable estate and wishing to keep those assets separate property, or the creation of a business by one spouse that wishes to keep those business interests as separate property.
Typically, if a business is started during a marriage by one spouse, that business interest is marital property. However, a postnuptial agreement (or premarital agreement) can establish otherwise and set out the interests of each spouse in business assets in the event of a divorce.
A separation agreement is a type of postnuptial agreement, since it is entered into after the parties are married. However, separation agreements are entered into after spouses have decided to end their relationship. A separation agreement will establish the parties’ rights and obligations regarding marital debts and assets after a divorce. If the couple has children, the separation agreement will likely also address child support and child custody and visitation issues.
However, even if the parties agree on issues of child custody, support, and visitation in a separation agreement, the court must approve the agreement to ensure it is in the best interests of the child. If the parties do not have minor children and enter into a separation agreement, it shortens the required time of separation before divorce from 1 year to 6 months. Additionally, the existence of a separation agreement provides the spouses greater control over the disposition of assets rather than letting the court decide. Separation agreements can also cover issues that the court doesn’t have jurisdiction over, such as post-secondary education expenses.
Whether you have chosen to enter into a marital agreement with your spouse, or soon to be spouse, or are deciding whether or not to sign one, our family law attorneys can help you protect your rights.