Premarital agreements, often called “pre-nups,” are among the most complicated and misunderstood topics in Virginia family law. The misunderstanding often begins before such an agreement is executed.
The purpose of a prenuptial agreement
A prenuptial agreement can be very helpful if one of the parties has financial assets that far exceed the assets of the other party. If both parties have complied with the statutory requirement of full disclosure (see below), the agreement can help both parties understand their respective financial positions if they choose to end the marriage.
A valid prenuptial agreement must be written and signed by both parties before the wedding. Both parties must also be afforded adequate time to read and inspect the document. This provision is often interpreted to give both parties the time have the agreement reviewed by an experienced attorney.
Invalidating a prenuptial agreement
If a party attempts to enforce one or more provisions of the agreement, the responding party may respond by alleging that the agreement was signed in bad faith by the other party. “Bad faith” is usually proved by evidence showing that the other party failed to make a complete disclosure of assets and liabilities or attempted to coerce the respondent into signing the agreement through the use of intimidation or fraud. The responding party can also defend an enforcement action by showing that the agreement was unconscionable when signed or has been rendered unconscionable by unforeseeable events occurring after the marriage.
Most cases involving enforcement of a prenuptial agreement are complex and ordinarily require experienced professional help.