Challenging Enforceability of Virginia Prenuptial Agreement

It’s a myth – though an oft-perpetuated one – that prenuptial agreements are primarily for those with a wealth of assets.

Our Fairfax divorce lawyers know a well-drafted prenuptial agreement can certainly shield one’s existing property and allow for a smooth transition from married life to singlehood. However, even when couples start with very little, whatever is earned during the marriage is going to be deemed “marital property,” subject to equitable division in the event of dissolution. Ensuring you keep what you earn is just one reason to consider initiating a prenuptial agreement.
Another is these contracts can specify not only who keeps which assets, but who is responsible for certain debt.

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Increasingly, people are entering relationships with major debts from college, credit cards or child support obligations.

Without a prenuptial agreement, family courts have a broad amount of discretion in terms of how assets will be divided. Having an agreement drafted before marriage gives you a greater degree of control over your own financial future. Amendments can be made as circumstances necessitate with the initiation of a post-nuptial agreement.

All that said, some agreements may be deemed unenforceable by the court if they are not drafted with proper care, or if the court finds the contract to be sharply skewed against one party.

Recently, the latter reason was the basis for the West Virginia Supreme Court affirmation of a lower court’s finding that a prenuptial agreement was unenforceable.

In Owens v. Owens, the couple married in December 1981. Days before the wedding, the parties signed a prenuptial agreement, drafted by a single lawyer who had previously represented the 38-year-old husband in other matters. The 23-year-old wife was not provided a copy of the contract before she was asked to sign it. At the time of the signing, the attorney reviewed the general terms, but did not detail the specifics with either the husband or wife. After the document was signed, the wife was not given a copy.

The document indicated each party would retain all real property they currently possessed. There was also a waiver of future spousal support, and in the event the pair had children, the custodial parent would ask for no more than one-half the support from the other. The wife disclosed her net worth as $7,000, while the husband disclosed a net worth of $94,000.

The pair married, raised their children from previous marriages together and also had two children together. The wife filed for divorce in 2005, but the pair later reconciled. Six years later, she again filed for divorce.

In his answer to her filing, the husband sought enforcement of the prenuptial agreement. The wife countered she did not know the extent of her husband’s assets when she signed the document. Several hearings were held to determine the validity of the agreement. Ultimately, the family court invalidated the agreement, finding the wife did not enter into it with full knowledge of the contents. Although it was executed voluntarily and free of fraud, misrepresentation or duress, the language contained in the document indicates the wife was represented by independent counsel, although it was undisputed that she was not. Additionally, while the wife had the opportunity to secure her own attorney to review the document, the court found she was truthful in her claim that her husband at the time assured her the lawyer who drafted the agreement represented both of their interests.

The court found the agreement was unconscionable on the grounds that it subverts all state statutes and judicial concepts of equitable distribution by excluding a number of important items from marital property, failing to address debts and eliminating the right to make certain claims. Additionally, the court indicated the stipulation regarding child support ran contrary to public policy, which was to ensure the best interest of the children.

This is an example of what can happen when prenuptial agreements aren’t properly drafted or executed. Other reasons for invalidation of prenuptial agreement might include false or incomplete information, pressure from one party on the other to sign or provisions that are illegal.

While this was a case decided in a neighboring state, as your family law attorney in Virginia can discuss with regard to your actual situation, prenuptial agreements are undoubtedly a great tool for couples to get on the same page with regard to their financial futures. However, ensuring the document will be enforceable means entrusting the job to a lawyer with experience.

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