If you are considering a prenuptial agreement, it is important to be aware of some common mistakes or issues that could affect the validity and enforceability of the agreement. In Virginia, the relevant Code provisions can be found at Virginia Code Sections 20-151 et al.
The Agreement was not signed by both parties
A prenuptial agreement must be in writing and signed by both parties.
The Agreement was not signed voluntarily
For a prenuptial agreement to be valid, it must be signed voluntarily and free from duress or coercion. Both parties must be in agreement with the terms and neither party can be forced or manipulated into signing the agreement. To minimize a lack of voluntariness attack, both parties should be represented by their own lawyers. The agreement should be negotiated and entered into months before the intended wedding date. Problems typically arise when an agreement is sprung on one of the parties just days or hours before the wedding. Problems can also arise if one of the intended spouses is from another country or English is not his or her first language. In these situations, it might be advisable to engage language interpreters to assist with explaining the Agreement in that party’s native language.
The Agreement was unconscionable when it was signed
The test for unconscionability is not clear cut, but when determining if an agreement was unconscionable when it was signed, the court will consider whether there was a gross disparity in the division of assets, whether there were overreaching or oppressing influences due to age, incapacity, ignorance, and other such considerations, such as whether there was a fair and reasonable disclosure of property and financial obligations (see below).
There was not a fair and reasonable disclosure of property and financial obligations
Under Virginia law, the parties must make a fair and reasonable disclosure of their respective property and financial obligations, or they must voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. The most prudent course of action is for both parties to provide fair and reasonable disclosures in order to minimize any concerns about unconscionability.
Other considerations
If you or your soon to be spouse is interested in a premarital agreement, that is something that should be discussed well before the wedding and even before an engagement occurs. A premarital agreement is a legal document that impacts the legal rights of both parties. Great care and time must go into the negotiation and drafting of a premarital agreement. Parties should stay away from online forms and should consult with reputable, legal counsel, who have experience drafting these types of agreements. In many cases, the parties may also want to consult with estate lawyers as a premarital agreement may also affect estate rights during the marriage.
