Separation and Prenuptial Agreement Attorney

Separation and Property Settlement Agreements

Spouses may enter into an agreement settling their rights and obligations, and a marital agreement becomes effective as soon as it is signed. Va. Code § 20-155. A complete agreement typically addresses:

• classification and division of the marital residence, investment real estate, retirement accounts, and business interests;
• allocation of debts and the tax consequences of the division;
• spousal support, including amount, duration, and whether either can later be modified;
• custody, the parenting schedule, and child support; and
• attorney’s fees, disclosure obligations, and what happens if a party breaches.

The agreement also affects timing. Where there are no minor children and the parties have a separation agreement, a no-fault divorce may be granted after six months of separation rather than one year. Va. Code § 20-91(A)(9).

Two statutory points are often overlooked. An agreement need not be in writing if its terms are recorded in a court order endorsed by counsel or the parties, or are transcribed by a court reporter and affirmed by the parties on the record. And unless the agreement expressly provides otherwise, a reconciliation after it is signed abrogates it. Va. Code § 20-155. For more background, see property settlement agreements in Virginia divorce.

What the Court Will and Will Not Do With Your Agreement

Incorporation. A court may affirm, ratify, and incorporate a valid agreement into the final decree, and once incorporated, its terms are enforceable in the same manner as any provision of the decree. Va. Code § 20-109.1. Whether the agreement is incorporated, and whether it also survives as an independent contract, determines how it can be enforced later. Those choices should be made deliberately when the agreement is drafted.

Spousal support. Where a signed agreement on spousal support is filed before the final decree, the court may enter a support order only in accordance with it. Va. Code § 20-109(C). Whether that support can later be modified depends on when the agreement was signed. For an agreement executed on or after July 1, 2018, a request to modify support based on a material change in circumstances may not be denied solely on the basis of the agreement unless it expressly states that the amount or duration of support is non-modifiable. Id. The modification clause is one of the most consequential sentences in the agreement, and it has to be written with the statute in hand. See spousal support in Fairfax and Loudoun.

Custody and child support. Parents may agree on custody and child support, but those terms remain subject to the court’s continuing authority. Parents cannot contract away a child’s right to support, and no agreement can prevent the court from exercising its power to change or enforce its decree concerning the custody and maintenance of minor children. Kelley v. Kelley, 248 Va. 295 (1994). Within those limits, and where the court finds the terms consistent with the children’s best interests, the parties’ agreement on child support will be enforced, including agreed provisions for future modification. Shoup v. Shoup, 37 Va. App. 240 (2001) (en banc); Va. Code § 20-109.1. See child support in Fairfax and Loudoun.

Premarital Agreements

A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration and becomes effective upon marriage. Va. Code § 20-149. The parties may contract about rights in property each owns or later acquires, the disposition of property on separation, divorce, or death, spousal support, life insurance, the law governing the agreement, and other matters that do not violate public policy or a criminal statute. Va. Code § 20-150.

The statute sets a narrow path for challenging one. A court will decline to enforce a premarital agreement only if the party resisting it proves either that the agreement was not signed voluntarily, or that it was unconscionable when signed and that, before signing, the party was not given fair and reasonable disclosure of the other’s property and obligations and did not voluntarily waive that disclosure in writing. Va. Code § 20-151(A). Unconscionability is decided by the court as a matter of law. Id. § 20-151(B).

Those standards translate directly into drafting practice. Full financial schedules attached to the agreement, enough time between delivery of the draft and the wedding, and independent counsel for each party all build the record that the agreement was signed knowingly and voluntarily. For a business owner, the agreement should also address how the business and any growth in its value will be treated, which is where many disputes later arise. See Prenuptial Agreements in Virginia: What They Can Cover.

Spouses who are already married may enter into a marital agreement on the same terms, effective on signing. Va. Code § 20-155.

Enforcing or Challenging an Agreement

When a former spouse does not perform, the remedies depend on what the agreement and the decree say. An incorporated provision can be enforced through the court’s contempt power like any other part of the decree. An agreement that survives as a contract can also support a claim for breach, and many agreements shift attorney’s fees to the party who forces enforcement. On the other side, a party resisting an agreement must fit the challenge to the governing statute and to the agreement’s own terms, and the burden is on that party. These cases are decided on the document and the record of how it was negotiated and signed.

Agreements Involving a Business or Significant Assets

When the estate includes a closely held business, a professional practice, deferred compensation, or a real estate portfolio, the agreement has to do more than state a number. It should identify how each interest was valued, how it will be transferred or bought out, what happens if a payment is missed, and how tax liabilities are allocated. A vague provision on a significant asset tends to become the next lawsuit. See business owner divorce and property division in Fairfax and Loudoun.