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What is a prenuptial agreement?

On Behalf of | Jun 22, 2024 | Firm News

Virginia, like many states allows two individuals to enter into premarital agreements (normally called a “prenuptial agreement’ or a “prenup”). In the event of divorce or separation, which of course we all pray, and hope doesn’t happen, these agreements can be completely determinative, so it is essential you know exactly what you’re signing.

Putting it broadly, you, and your soon to be spouse, can put pretty much whatever you want in this agreement as long as it doesn’t violate public policy.

Do we need a prenup?

No nobody needs a prenup. But in the event of divorce or separation do you want a judge who’s a stranger and two very expensive attorneys arguing how to divide up your assets? Or would you rather you and your soon to be spouse make that decision while you both have cool heads?

What can we put in the prenup?

The big terms that most people include in their prenups are as follows:

  • Spousal Support
  • Real Property
  • Retirement Assets
  • Investment Accounts
  • Bank Accounts
  • Personal Property
  • Businesses
  • Inheritance

Some terms you’ll notice are missing are those regarding children. Custody, visitation and child support. That’s because, generally speaking, the court makes these decisions for the benefit of the children and won’t let you (or your spouse) contract away your children’s rights.

Can we amend the prenup?

Yes, as long as the amendment is executed pursuant to the language in your current prenup. So, a pinky promise won’t overrule a signed and notarized prenuptial agreement, you’ll probably have to sign and notarize a postnuptial agreement.

What should we put into the agreement? What’s fair?

The last person to ask what’s fair is a lawyer! My word of advice is simple is better. If a divorce does happen, you want it to be simple and straightforward. You don’t want to be pulling up receipts throughout the marriage to determine who exactly paid for what-on-what day, that’s going to make the divorce even messier. Along that same line of thought, I generally don’t recommend including any provisions that penalize whoever “initiates” the divorce, that will only encourage two unhappy individuals to stay together to avoid the penalty, and potentially annoy the other person enough to force them to file! Finally, I also don’t recommend adultery clauses. These prenups are done to be clear and simple; not to encourage the parties further litigation.


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