Family Law/ Prenuptial Agreement

 

 

 

What is a Prenuptial Agreement?

 

A prenuptial agreement is a private agreement between two persons contemplating marriage. The couple generally settles, in advance, financial matters in the event of death or divorce. “Lifestyle” or non-financial topics also may be included. The contract overrides and preempts state, family, and probate laws that otherwise would apply. Many points factor into a prenuptial agreement, and our experienced Fairfax Virginia family law attorney at The Law Offices of Lewis and Associates, P.C. can help.

 

There are three basic rules that should be followed to safeguard your agreement: full and fair disclosure, separate and independent counsel, and ample lead-time before the wedding.

 

What should be included?

 

  • List all assets, liabilities, income, and expectations of gifts and inheritances.
  • Describe how premarital debts will be paid.
  • Resolve what happens to your premarital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
  • Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
  • Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
  • Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
  • Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
  • Detail death benefits, stating what you will provide for in your will.
  • Decide on medical, disability, life or long-term-care insurance coverage.

 

Do Courts Uphold Prenuptial Agreements?

 

In general, the closer to the wedding date the prenuptial was signed, the greater than danger that it will not be upheld. If one side was represented by a lawyer and the other was not, or both sides were represented by the same lawyer, either party can argue he or she did not understand what was signed, and the prenuptial agreement may not be valid. If the parties failed to disclose their assets, the prenuptial can be attacked on that basis. The greater the number of these factors in one case, the greater the chances a court may not uphold it. Finally, a court may ignore provisions concerning custody and child support in favor of the standards of what is in the best interest of the child.

 

How does a judge decide whether to uphold the prenuptial agreement?

 
A judge may conduct a trial on the issue, or may read sworn statements concerning the agreement. Decisions are based on which side the judge believes, as well as a consideration of the law.