Is My Pre-Marital Agreement Valid?
Pre-marital agreements are not for everyone, but many couples choose to use these contracts as a way to not only protect themselves in the event of a divorce, but plan for the future of the marriage. Pre-marital agreements can determine property division upon dissolution of the marriage and contain provisions for how the couple will commingle or separate their finances. If you signed a pre-marital agreement and are now facing an outcome of your divorce that is not in your favor, you may be wondering whether the contract was valid and if you can get out of it. You should bring your questions regarding pre-marital agreements to the experienced Leesburg divorce attorneys at our firm.
Virginia’s Pre-Marital Agreement Act
Pre-marital agreements are defined and governed by Virginia statute §20-147 through §20-155, also known as the Pre-marital Agreement Act. In order for this type of contract to be valid at the most basic level, it must be:
- Made between prospective spouses;
- Made in contemplation of marriage;
- In writing; and
- Signed by both parties.
Also, a pre-marital agreement becomes effective once the marriage is officially entered into. However, there is more to a pre-marital agreement than signing a written document. Under §20-151, there are specific instances when a pre-marital agreement cannot be enforced or is void under the law.
When a Virginia Court Will Not Uphold a Pre-Marital Agreement
Most pre-marital agreements are enforceable, however, there are circumstances in which a judge will throw out a provision or the entire document during a divorce. Under Virginia law, the court will not uphold a pre-marital contract if:
- A person did not sign the contract voluntary;
- The agreement was unconscionable when executed and 1) one of the individuals was not provided fair and reasonable disclosure of the other person’s property or financial obligations and 2) did not voluntarily and expressly waive, in writing, any right to disclosure of the other person’s property and financial obligations; or
- The marriage is determined to be void.
For a pre-marital agreement to be considered unconscionable at the time of its signing, the judge will look at whether it was unreasonable and unethical. A pre-marital contract may be considered unconscionable if it leaves one party with very little or no property or support after a divorce or if it has one spouse give up a basic right granted to them by marriage, such as inheriting from their husband or wife when he or she passes.
It is also important to note that a judge will look at whether the agreement was unconscionable at the time you signed it – not at the time you are getting a divorce. A contract that was fair at the time may no longer be fair now, but that does not make it unenforceable.
A Leesburg Divorce Attorney Is Here to Help
If you are facing a divorce settlement that will cause you significant financial hardship because of a pre-marital agreement, contact the experienced Leesburg legal team of Whitbeck Cisneros McElroy PC at 703-997-4982 or contact us online to schedule an initial consultation. We can review your rights under your pre-marital agreement and the circumstances under which you entered into to determine if it is unenforceable or void.