A prenuptial agreement is a private contract two people sign before they marry to decide, in advance, how property and debts will be handled if the marriage ends in divorce or death. It’s also called a premarital agreement, an antenuptial agreement, or simply a prenup. A post-nup does the same job for a couple who are already married.
Prenuptial agreements can be tricky to navigate, substantively and emotionally. They lay out the financial plan for your marriage in legal terms, and they call for honest communication about your future. As a prenuptial agreement lawyer and family law attorney, Mariam Ebrahimi drafts and reviews prenups and post-nups for engaged and married couples across Fairfax and Loudoun counties from our offices in Fairfax and Leesburg.
Under Virginia Code Section 20-148, a premarital agreement (a.k.a. a “prenup”) is an agreement between prospective spouses made in contemplation of marriage and effective upon marriage. In plain terms, you and your partner decide (via written contract) how your property rights and financial obligations will be handled during the marriage and if it ends in divorce.
Virginia is an equitable distribution state. Without an agreement, a court handles property division by dividing marital property in a way it finds fair, and separate property gets complicated once it is commingled or appreciates. A prenuptial agreement settles what each spouse is entitled to before the divorce process ever begins.
The benefits of a prenuptial agreement are not limited to people with significant wealth. Not at all. Many couples use one to protect what each partner brings into the marriage and to establish clear expectations. A well-drafted agreement typically addresses:
A fair agreement, reached early, also brings your finances into the open and gives both of you peace of mind as you make important decisions about your future together.
A Virginia prenup is enforceable when it’s in writing, signed voluntarily by both people, and not unconscionable in light of fair financial disclosure or a written waiver of it. Those requirements come from the Virginia Premarital Agreement Act, Code of Virginia Sections 20-147 through 20-155.
The agreement must be in writing and signed by both parties; a verbal prenup is unenforceable. No separate consideration is needed and the agreement becomes effective upon marriage, not when it’s signed. The statute doesn’t require the prenup to be notarized.
If a prenuptial agreement is challenged, a court will refuse to enforce it if the person challenging it proves either that he or she did not sign it voluntarily (pressure, duress, or a final agreement handed over days before the wedding all invite that claim) or that the agreement was unconscionable when signed and that person neither received fair and reasonable disclosure of their spouse’s property and debts nor waived it in writing. The judge decides unconscionability as a matter of law, so careful drafting and complete financial disclosure are your best protection.
Virginia Code Section 20-150 lets a couple contract on a wide range of financial matters: rights in property wherever it is located; the right to buy, sell, manage or mortgage property; how property is divided on separation, divorce, death or another event; spousal support; wills and trusts that carry out the agreement; ownership of life insurance death benefits; which state’s laws govern it; and any other matter that does not violate public policy or criminal law.
Those two issues are not on the statute’s list. Child custody and child support are decided in the children’s best interests, regardless of what a prenuptial agreement or postnuptial agreement says. You can plan for your own finances; you cannot contract away your children’s rights, including each parent’s duty to pay child support.
A postnuptial agreement, referred to in statute as a “marital agreement,” covers the same concerns as a prenuptial agreement. Under Virginia Code Section 20-155, married couples may enter marital agreements on the same terms as prospective spouses, with one key difference: a post-nup is effective immediately upon signing. Clients often ask about post-nups when they ran out of time before the wedding, when a spouse starts a business or receives an inheritance, or when one or both parties want to settle financial expectations after a difficult stretch in the relationship.
Life changes. Your prenuptial agreement can change with it. Under Virginia Code Section 20-153, a premarital agreement may be amended or revoked after marriage only by a written agreement signed by both spouses. A verbal understanding will not modify it.
You can also install a sunset provision into the agreement. After a certain duration of marriage, for example, specific terms may be allowed to change or the agreement may be allowed to dissolve. Our article on whether your prenup should have a sunset clause explains the circumstances for which those conditions apply.
In more than two decades of family law experience, we’ve seen the same mistakes undermine sound agreements time and again:
Mariam Ebrahimi has practiced family law in Virginia since 2001. She graduated magna cum laude from The Catholic University of America’s Columbus School of Law, is licensed in Virginia, and has been named to Super Lawyers for Family Law in Virginia since 2022. Prenups and post-nups are one of our firm’s core practice areas, and because we also handle divorce, custody, support, and other family law matters, we bring that experience to how a prenuptial agreement holds up when family law issues reach the courtroom.
As your attorney, Mariam will help you:
Mariam works with clients throughout Fairfax County from our office on Chain Bridge Road in Fairfax VA, and throughout Loudoun County from our Leesburg VA office on Edwards Ferry Road. Call us at 703-438-7676 to schedule a prenup or post-nup consultation.
Yes, when it meets the Premarital Agreement Act. The prenup must be in writing, signed voluntarily by both parties, and not unconscionable given financial disclosures each person received or waived.
Yes, with some limitations. Section 20-150 lists spousal support as a matter a premarital agreement may address. Our family law attorney, Mariam Ebrahimi, can explain how a Virginia court is likely to view a waiver or cap on support. Then she can draft the agreement with that in mind.
Virginia law doesn’t require it, but we strongly recommend that each partner has their own lawyer. Independent legal advice helps guard against future claims that one spouse didn’t understand the agreement or was coerced.
As early as you can, ideally months before the wedding, so each lawyer has time to do the work. The process of gathering financial information, exchanging financial disclosures, and reaching agreed-upon terms takes time, and a prenuptial agreement signed under last-minute pressure is more likely to be challenged.
Whether you’re planning a wedding or already married, our lawyer can help you create a personalized prenuptial agreement or post-nup. Call our office at 703-438-7676 or send us a message today to schedule a consultation and discuss your goals with an attorney.
Call our office at 703-438-7676 or send us a message today to learn more about how we can help you create a personalized prenuptial or post-nuptial agreement.
If you are dealing with a family law matter, you need an attorney who is going to fight for you. Contact us to learn how we can handle your case in a personalized, compassionate and affordable manner.
