Why Pre-Nuptial Agreements Do Not Solve All Divorce Problems

Posted on April 8, 2013 by

Introduction

Premarital agreements (also called antenuptial; prenuptial contracts; or “pre-nups”) are entered into by prospective spouses who wish to privately and contractually vary, limit or relinquish certain marital property and support rights that they would otherwise acquire by reason of their impending marriage. Whether a premarital agreement is necessary or even a good idea, is beyond the scope of this article, but depends on the specific facts and circumstances of each person/prospective spouse.

Not an “All-Inclusive” Document

Prenuptial agreements are designed to address financial issues. Any provision discussing non-financial issues will not be upheld. For example, premarital agreements define the terms of possession of assets, treatment of future earnings, control of the property of each and potential division if the marriage is later dissolved. Pre-nups do not, however, include provisions dealing with child support and child custody arrangements, which are considered upon divorce by the parties or by the court in the best interests of the child. Furthermore, premarital agreements cannot include arrangements dealing with personal preferences, such as who has what chores, where to spend the holidays, etc.

Invalid Pre-Nups

Premarital agreements are contracts, subject to the same rules of creation and enforcement as any standard contract in Virginia. This means that if the premarital agreement is poorly drafted, it might not be upheld by a court during divorce. There are several ways that a prenuptial agreement may be challenged.

First, premarital agreements may be declared void if they were not executed properly. In Virginia, under the Uniform Premarital Agreement Act, a prenuptial agreement must be in writing and signed by both parties.

Furthermore, like all contracts, a prenuptial agreement must include a voluntary meeting of the minds to be considered valid. To this end, courts look carefully at whether either party was unduly pressured to sign a prenuptial agreement or whether the agreement signed was unconscionable. Parties should be represented by independent counsel when executing their agreement; having one attorney handle the agreement, particularly if that attorney was previously associated with one of the parties, can be seen as a sign of improper influence on the other party. Unless the agreement is clearly of mutual benefit and entered into by two people of relatively equal education and socio-economic status, ensuring that each person has his or her own attorney review and explain the agreement helps avoid having the contract declared invalid as involuntary or unconscionable. Prenuptial agreements will be declared invalid if they require illegal acts, or if they would leave one of the parties, or children of the relationship, without at least a basic level of support after divorce or death.

Bad faith can also invalidate a pre-nuptial agreement. A prenuptial agreement may be declared invalid if one or both of the parties did not fully and fairly disclose all their assets, debts or relevant personal information such as existence of children by a prior marriage.

Challenging the validity of a prenuptial agreement during the divorce process can be a very expensive proposition. Furthermore, many agreements contain language that state a spouse will be required to pay the other spouse’s attorney’s fees if he or she challenges the validity of the prenuptial agreement and the challenge is not successful.

Attorneys at Locke and Quinn know how to properly draft pre-nuptial agreements and will help you with identifying whether a pre-nup is a good idea, what assets to include and exclude in your agreement, and how to enforce the agreement in the event of a divorce.

Categories: Divorce
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