What Is a Virginia Postnuptial Agreement?
A Virginia postnuptial agreement is a contract between two spouses signed after they marry. In contrast, the parties sign a prenuptial agreement before marriage. Both outline how the couple will divide property and debts if the marriage ends. They offer guidance in cases of divorce or the death of one spouse. Postnups are governed by the Virginia Premarital Agreement Act (VA Code §§ 20-147 through 20-155).
Postnuptial agreements in Virginia provide many benefits. For example, they protect assets acquired during the marriage and update previous arrangements. Without one, Virginia courts fall back on equitable distribution laws during a divorce. Per VA Code § 20-107.3, the court will divide marital property fairly. The division may not be equal, though, as it accounts for several factors. It considers each spouse’s financial needs and the length of the marriage.
A valid postnup lets the spouses establish the division of property and debts instead of defaulting to the court. To be enforceable in Virginia, a postnup must be in writing and signed by both spouses. The parties to a postnup must also disclose all their assets.
How to Write a Postnuptial Agreement in Virginia
You must follow certain steps to create a legally valid postnuptial agreement for Virginia. Here’s what you need to do:
- Provide the spouses’ basic information. List the spouses’ full names and when and where they were married.
- Disclose financial information. Each spouse must fully and fairly disclose assets, income, liabilities, and other relevant financial information.
- List individual and marital property. Clearly define marital versus separate property, and identify any business, income streams, or other assets owned before the marriage.
- Outline property division terms. Specify how debt and property will be divided in the event of death or divorce. These terms will override Virginia’s default rules for spousal support under VA Code § 20-107.1.
- Talk about debts and liabilities. State how marital and personal debts and liabilities will be handled if divorce or death happens.
- Decide on the marital home and household expenses. State whether the marital home will be divided if divorce happens. Also, discuss how everyday costs like insurance will be shared throughout the marriage.
- Talk about pets. State whether the parties bought any pets during their marriage. If yes, decide who will own the pets if the marriage ends. You can attach a separate pet custody agreement if you need more room.
- Add miscellaneous clauses. These may include provisions for retirement benefits, insurance, or handling taxes. You may also want to include a clause stating that each party has had the chance to seek independent legal counsel.
Sample Virginia Postnuptial Agreement
View our free Virginia postnuptial agreement template to understand how to structure yours. When you’re ready, create your own via our document builder. Available as a PDF or Word document.
Legal Requirements and Considerations for Virginia Postnups
VA Code § 20-155 affords postnups the same terms and conditions as prenups, so the two documents receive the same treatment under the law. To be valid in Virginia, a postnup must meet the following requirements:
Signing Requirements
According to VA Code § 20-149, both parties must sign for a postnup to be valid. There does not have to be consideration for it to be enforceable. A postnup becomes enforceable immediately upon signing, whereas a prenup is not effective until the marriage.
Legal Representation
While you do not need a lawyer to create a postnup in Virginia, it is recommended that you work with one. An experienced lawyer can help ensure the postnup’s terms are valid and unlikely to be challenged in court. They can also help each spouse understand the consequences of signing the agreement and their rights. They review the document to guarantee it has all the necessary legal protections and disclosures.
Excluded Terms
Postnuptial agreements in Virginia cannot include the following:
- terms that would encourage divorce or restrict the right to seek one
- provisions that violate public policy or criminal laws
- provisions that appear coercive or unconscionable
State law does not explicitly prohibit agreements that dictate child support, custody, or visitation terms. However, the court will always have discretion to disregard an agreement concerning the welfare of children, as it is the duty of the court to determine the children’s best interests.
Non-Probate Transfers on Death
Under VA Code § 64.2-314, a spouse can waive their right to receive non-probate transfers in writing. When this happens, the decedent’s estate plan can be carried out without legal challenge or dispute.
Non-probate transfers are transfers of property at death from one party to another without the need for a probate proceeding. Common examples include life insurance policies and payable-on-death (POD) accounts.
Inheritance Rights
Under VA Code § 64.2-422, a surviving spouse is typically entitled to at least some of their deceased spouse’s estate. However, spouses can waive this entitlement in a prenup, postnup, or will.
Blended families may use this waiver to protect the inheritance of their children from previous marriages. Without this waiver, the surviving spouse can claim part of the estate.
