A West Virginia postnuptial agreement is a legally binding contract that married couples utilize to outline the allocation of property and assets in the event of divorce or the passing of one spouse. While postnups are similar to prenups, they differ in that spouses execute them after marriage rather than before.
State law acknowledges separation agreements, which couples prepare when planning for an imminent divorce. However, state law and court cases provide little instruction for couples who want to create postnups and aren’t planning to divorce. It may be best to seek advice from a local attorney with experience creating postnups in the state.
Legal Considerations
Title 48 of the West Virginia Code discusses domestic relations, mainly marriage, divorce, and the rights of married women.
- Signing Requirements: State law doesn’t contain a single statute outlining the signing requirements for postnups, but these documents follow the basic principles of contract law. It’s highly recommended for both spouses to sign the agreement to affirm its effectiveness.
- Dividing Property: Equitable division (§ 48-5-610).
Understanding Postnuptial Agreements in West Virginia
Dividing Property in Accordance with a Separation Agreement
A court shall divide the property according to the terms of a separation agreement unless the court discovers that any of the following are true (§ 48-7-102):
- One of the parties entered the agreement via duress, fraud, or unconscionability;
- One of the parties has not expressed themselves in terms that would be enforceable by a court in future proceedings; or,
- The agreement is so inequitable as to defeat the purposes of this section.
§ 48-29-101 – Emancipation from All Disabilities under Common Law
- All married women are fully emancipated from the disabilities and incapacities to which they were formerly subject under common law.
§ 48-29-102 – Emancipation from All Disabilities to Contract
- All married women can make contracts of any kind and assume or stipulate obligations of any kind.
- Any obligation, contract, or act of a married woman should never require the authority of her husband or a judge for its effectiveness or validity.
§ 48-29-103 – Emancipation from All Disabilities as to Personal or Real Property
- All married women may own, in their own right, personal and real property, acquired by purchase, gift, or descent and may manage, dispose of, convey, or sell the property as a married man can.
§ 48-29-301 – Requirement of a Writing for Contract between Husband and Wife
- A postnup shouldn’t be enforceable by way of defense or action unless some writing indicates a contract has been made between them and signed by the spouse against whom the other party is seeking enforcement.
