Prenuptial agreements (also known as premarital agreements) often contain terms regarding what will happen if a marriage ends in divorce. Will such terms be enforced in Virginia divorces?
Generally speaking, yes. State law allows couples to reach prenuptial agreements on a wide range of issues. This includes issues related to property division and spousal support. Generally, in divorces, courts will follow the terms of such agreements.
There are some exceptions to this though. Courts will generally deem a prenup unenforceable in a divorce if any of the following is found:
- That no agreement was actually formed: For a prenup to be validly formed in the state, it has to be in writing and be signed by both of the marrying parties.
- That the person it would be enforced against didn't sign the agreement voluntarily
- That the agreement was unconscionable (though there are exceptions): Generally, a prenup that a court finds was unconscionable at the time of formation is only enforceable if it is shown that the person the agreement would be enforced against received a reasonable and fair financial disclosure prior to signing the agreement or expressly and voluntarily waived, in writing, such disclosure prior to signing.
Also, a prenup term can be found unenforceable if a court deems the term to be illegal or against public policy.
So, what people do to avoid enforceability problems when forming a prenup can be very impactful. So too can how they respond to potential prenup enforceability issues that arise during a divorce.