March 29, 2019
Virginia is an equitable property state, which means that during a divorce, your marital assets will be divided in an equitable manner. Equitable does not mean equal. If you have a prenuptial agreement and it is deemed invalid, the court will divide assets according to Virginia law, not your contract. This is why it’s crucial to have your prenuptial agreement drafted by a Virginia family law attorney.
Here are some of the reasons your prenuptial agreement could be deemed invalid during your divorce.
Agreement is Not in Writing or Signed
The law does not allow for oral prenuptial agreements. Your marital agreement must be in writing in order for the court to determine its validity. And, on that note, if you have it in writing and it’s not signed by your spouse, the agreement will be declared invalid.
You Broke Up Before the Marriage
If you have joint assets prior to the marriage, you may have included those on your prenuptial agreement. If you end up breaking up before the wedding takes place, the agreement won’t be valid as the act of marriage is what would make it valid. To split up the assets you own jointly, you may have to litigate some of these issues.
Your Agreement has Invalid Provisions
The court will determine your prenuptial agreement is invalid if it contains invalid provisions. The courts give considerable latitude when it comes to what a prenuptial agreement can contain. However, if your agreement is in violation of a federal or state law, the judge may deem the whole agreement invalid. There is a chance the judge may only strike the clause that is invalid, but is it worth taking that risk to include something questionable in your agreement?
Agreement Contains Fraudulent Information or Assets are Missing
In order for a prenuptial agreement to be valid, both parties have to disclose all their financials. This includes income, debts, assets, and any other liabilities. If one party is attempting to hide assets or puts fraudulent information in the agreement, there is a good chance the judge will declare the entire agreement invalid. It’s important to be as transparent and forthcoming as possible in a prenuptial agreement so you do not run the risk of your soon to be ex claiming you purposely hid assets or misrepresented some information in the agreement.
Your Agreement is One-Sided
A prenuptial agreement that heavily favors only one party will likely be thrown out. You cannot draft an agreement that leaves one spouse in complete financial ruin in the event the marriage breaks up. These types of agreement are referred to as unconscionable contracts and won’t stand up in court.
Retaining a Virginia Marital Agreement Attorney
In the event you need to have a prenuptial agreement drafted, or you have been presented one to sign, it’s important to speak to a skilled Virginia premarital agreement attorney. By ensuring your soon-to-be-spouse has your agreement reviewed by his or her own independent attorney, it eliminates any claim of being forced to sign under duress or that they lacked mental capacity to sign. Contact Cravens & Noll PC at 804-330-9220 to schedule a consultation.