We live in an era of false equivalence. One person’s uninformed opinion is supposed to be as respected and valid as another person’s researched and studied opinion. In a just argument, you will represent all sides of an issue fairly, accept your burden of proof, and reason correctly. This means looking at both sides of a situation, such as invalidating prenuptial agreements. Lawyers are masters of argumentation; we can look at both sides. That is helpful to our clients who may want to invalidate a prenup, and to other clients who may want to confirm its validity.
A prenuptial agreement, or prenup, is established when one or both of the parties to an upcoming marriage must set apart property or assets so the other party cannot get to them. These assets could be liquid (cash), intangible (intellectual property, patents, royalties), or real (land, buildings, artwork).
In Virginia, any arrangement to set limitations to a marriage falls under the purview of Title 20, Chapter 8 of the Code of Virginia, the Premarital Agreement Act. The chapter is short — only nine sections — and to the point. It provides Virginia couples a legal method for preserving separate property from before their marriage, so that (should the marriage crumble) you can return to your separate life with your previous possessions perfectly preserved.
The short sections of the Act provide a good attorney with all the tools necessary to craft a fine prenup. They also provide the tools for another good attorney to vigorously attack an existing prenup, looking for any little weakness that does not follow the letter and spirit of the Act.
What Makes a Prenup Null and Void?
A Virginia court can invalidate a prenuptial agreement if it includes provisions that are invalid:
- Waiving rights protected by law
- Defining responsibilities that are unrealistic or illegal (“unconscionable” in the words of the Code of Virginia)
Waiving rights protected by law would mean things like ordering your wife to vote as you dictate, pray with you every morning, or take out loans in her name alone.
Unrealistic or illegal provisions are things like legal demands to maintain weight, hair color, or frequency of sexual intercourse. You also cannot stipulate how rarely your mother-in-law visits, or that your wife bear you exactly two sons.
Additionally, a prenup is invalid if it was obtained by duress. You and she had to be willing to sign it, not forced into it. Other ways, according to Virginia Code § 20-151, that the prenup can be invalid:
- The marriage itself is declared invalid, in which case the prenup is invalid or fulfilled only “to the extent necessary to avoid an inequitable result.”
- One party was not given a fair and reasonable disclosure of the property or finances of the other party (you did not reveal to her that you own the fabulous, legendary and missing Florentine Diamond1, for example)
- Either of you did not “voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.”
What Makes a Prenup Legal?
On the other side of the argument are the Virginia men who want to make certain their prenup is absolutely legal and inviolate. To do that, essentially, you and your wife have to enter into the prenup following all the requirements of the Act.
- Make certain both of you have legal representation. That way, later, she cannot claim to have been tricked into signing the prenup.
- Make certain you begin the prenup process well in advance of a wedding date, so your wife cannot later claim to have signed under
- Keep all conditions simple and financial. Avoid weird clauses or expectations. Leave in-laws out of the prenup.
- Make the prenup fair to you both. If she has a collection of steins worthy of the Steins Unlimited Museum and you have a collection of mortars and pestles worthy of the Stabler Leadbeater Apothecary in Alexandria, put in writing that you steer clear of her steins and she won’t pester your pestles.
At The Firm For Men we recognize that nearly as many of our male Virginia clients will look for a way to void a prenup as will look for a way to ensure it is impenetrable. We know some prospective clients will want to take one side, and other clients will want to take the other side. By contacting the law team at 757-383-9184, or by contacting us online, you can find advocates who stand not for this side or that, but for the rights of Virginia’s men.