2.2 PREMARITAL AGREEMENTS
2.201 The Virginia Premarital Agreement Act.In the past parties entered into premarital agreements with a level of uncertainty about their validity. Today, however, the presumptive validity and enforceability of such agreements in Virginia is no longer in question. The Virginia Premarital Agreement Act (the Act), 11 first adopted in 1985, not only clarified the validity of agreements created after its enactment but also specifically validated all prior agreements that were otherwise valid as contracts. 12
2.202 Case Law Under the Premarital Agreement Act. In the past three decades, a number of cases have been decided under the Act. The cases tend to be fact-specific and, therefore, tend not to be reported decisions. 13 Because the Act is a uniform act, cases decided under the laws of other states that have adopted it may also be useful resources to practitioners.
Case law and statutory amendments intersected at Richardson v. Richardson 14 and section 20-155 of the Virginia Code. Because the Act requires all settlements to be in writing, and because section 20-155 makes the Act applicable to marital agreements as well, oral settlements read into the record were, for a time, invalidated as not in compliance with the Act. 15 Subsequent amendments to this section revitalized the ability of parties to settle "on the record." 16
2.203 Reasons for Premarital Agreements.Although any couple intending to marry may enter into a premarital agreement if they so desire, typical reasons for entering into such agreements include:
| 1. | Marriages between older parties whose assets have largely been secured by efforts before the marriage; |
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| 2. | Marriages in which either party has children from a prior relationship; |
| 3. | Marriages in which one party who has acquired wealth through an actively managed business or investment portfolio wishes to ensure that the wealth remains separate property; |
| 4. | Marriages in which the parties wish to clarify which items of property are marital and which are separate; |
| 5. | Marriages in which one party wishes to limit or eliminate altogether the possibility of spousal support; and |
| 6. | Marriages in which the parties wish to limit future contested litigation. |
2.204 Consideration.The Act states that a premarital agreement is enforceable without consideration, 17 but in fact the marriage itself is the consideration. 18
2.205 Requisites for Validity.The Act states the following requirements for a valid premarital agreement:
| 1. | The agreement must be in writing; |
| 2. | The agreement must be signed by both parties; and |
| 3. | The parties must actually marry for the agreement to become effective. 19 |
2.206 Attacks on Validity. A nonexhaustive list of the bases for attacking a premarital agreement, supported by the Act itself, includes:
| 1. | The agreement may be set aside if it was not signed voluntarily by the person against whom it is being enforced; 20 |
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| 2. | The agreement is not enforceable if the person against whom enforcement is sought establishes all three of the following: 21 | ||
| a. | The agreement was unconscionable when signed; | ||
| b. | The party challenging the agreement was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and | ||
| c. | The party did not voluntarily and expressly waive in writing any right to such disclosure; and | ||
| 3. | A premarital or marital agreement that is not in writing and signed by the parties is generally invalid. But a marital agreement need not be in writing if its terms are (i) contained in a court order endorsed by counsel or the parties or (ii) recorded and transcribed by a court reporter and affirmed by the parties on the record personally. 22 | ||
2.207 Void Marriages.Premarital agreements are effective only upon the marriage of the parties. 23 If the marriage is determined to be void, the agreement is enforceable only to the extent necessary to avoid an inequitable result. 24
2.208 Contents of Agreement.
A. Allowable Contents. Section 20-150 of the Virginia Code allows the parties to contract with respect to:
| 1. | The rights of each in the property of the other or in the property of both of them; |
| 2. | The right to manage and control property; |
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| 3. | The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; |
| 4. | Spousal support; |
| 5. | Making a will, trust, or other agreement; |
| 6. | Life insurance; |
| 7. | Choice of law; and |
| 8. | Any other matter not in violation of public policy or a criminal statute. |
B. Unenforceable Contents. Provisions setting forth the custody and custodial schedules for unborn children, although sometimes included in...
