Engaged? Thinking about a prenup? Congrats on both and this new chapter in your life. Prenups are helpful tools that can do so much more than just protect individual financial interests. But where do you start your prenup journey in Virginia? Do you need a lawyer? What is financial disclosure? What happens if you don’t get a prenup? What are the benefits? There are so many questions… and we have the answers! Keep reading to learn everything you need to know about getting a prenup in Virginia.
1. Virginia is an equitable distribution state (what happens without a prenup)
Let’s first talk about what happens in Virginia if you do not get a prenuptial agreement. Virginia is an equitable distribution state, which means that property is divided equitably, not necessarily 50-50 in a divorce. A court divides up property on a case-by-case basis by evaluating a list of factors. One of the factors that may be considered is the actions of the parties and how the divorce came about. (Va. Code Ann. § 20-107.3).
In other words, the court may consider each person’s behavior in dividing up assets. This may or may not be in your best interest, depending on the situation. However, a prenuptial agreement can override these laws and allow you and your partner to divide up assets as you see fit, and not allow a court to make this decision.
2. Financial disclosure is required (unless waived) in Virginia prenups
Financial disclosure is a key requirement for a valid and enforceable agreement in Virginia. It is the act of sharing the values of your income, assets, debts, and future known inheritances with your partner and attaching them to the prenup in a financial schedule. (VA Code § 20-151). The requirement of financial disclosure helps ensure that each person understands what rights they are giving up in the agreement. For example, imagine you waive certain property rights in a prenup agreement without understanding that your future spouse is the heir to a $100 million fortune. You may want to know this tiny bit of information when giving up rights to future financial support.
In addition, financial disclosure has other benefits, such as creating trust and transparency in the relationship. Plus, the act of sharing financial information with one another prior to marriage can help facilitate tough conversations around debt, savings, retirement, and so much more.
Keep in mind that financial disclosure can be waived, but the waiver must be made in writing and clearly state that both parties are intentionally giving up their right to receive each other’s financial information.
3. A lawyer is not required for a valid prenup in Virginia, but it can be helpful
While hiring a lawyer is not a prerequisite for a valid and enforceable agreement in Virginia, hiring one still has benefits. In short, Virginia law does not mandate that you hire a lawyer to create a prenup. You and your spouse can theoretically draw one up yourselves, as long as it complies with all of the state laws. Hiring a lawyer just helps ensure you understand what you’re signing, that the agreement is state-compliant, and it meets your unique needs. However, if the prenup is ever challenged in court one day by either spouse, the court may look at the presence or absence of a lawyer as one factor of many in determining enforceability.
4. Notarization is not required, but it is easy to do and adds protection
According to VA Code § 20-149, the only formalities required for a valid prenup in Virginia are putting the agreement in writing and signing it. It does not require notarization, as some states do. However, even though it’s not required, having your Virginia prenup notarized can be beneficial. It can add a layer of protection to your agreement should your spouse try to challenge the agreement in a divorce. Having the prenup notarized shows that both parties actually signed the agreement and can deter certain arguments of fraud. Plus, nowadays, getting your Virginia prenup notarized is super easy and cheap with companies like HelloPrenup.
5. Virginia follows the Uniform Premarital Agreement Act
Virginia is one of the 29 states, plus District of Columbia, that have adopted the Uniform Premarital Agreement Act (UPAA) (VA Code § 20-148 et seq). It adopted this prenup law in 1985, applying it to all prenups signed on or after July 1, 1986. While Virginia’s version closely follows the national UPAA model, it made a few key changes, such as strengthening the financial disclosure requirement by allowing a prenup to be invalidated if there wasn’t adequate disclosure, even if the other party could have found the information on their own (though financial disclosure may still be waived). Bottom line? Virginia is a UPAA state and actually crafted stricter financial disclosure requirements, underscoring how important that is for Virginia prenups.
6. Prenups must not be unconscionable
Another key aspect of prenups in Virginia is that they must be conscionable. An “unconscionable” prenup in Virginia is not enforceable. What is considered unconscionable may vary from state to state but in Virginia, a court tests the unconscionability of a prenup by asking: (1) If there was a gross disparity in the division of assets, and (2) If there is evidence of overreaching or oppressive influences. (Chaplain v. Chaplain (2009). If both of these things are true (there is a huge financial disparity between the spouses and there is evidence of overreaching/oppressive influences) then the agreement will be considered unconscionable, and therefore, unenforceable.
For example, in the 2009 Chaplain case, the Virginia court found the prenup unconscionable because the wife gave up nearly all rights while the husband kept his $20 million estate, and she only stood to receive $100,000 if he died while they were still married. She didn’t have a lawyer, didn’t understand English well, her husband did not discuss the prenup with her prior to presenting it, she was not given the opportunity to hire a lawyer, and thought she was signing a marriage document—not a contract about finances. HelloPrenup helps prevent these issues by guiding couples through a clear, step-by-step process that includes financial disclosure, plain language explanations, and the option for each party to consult an attorney.
7. Prenups can actually make your marriage better
Despite contrary belief, prenups can actually make your marriage stronger. The act and process of getting a prenup requires both spouses to discuss difficult topics such as death, money, lifestyle choices, etc. before the marriage. It also requires couples to share all of the income, assets, and debts through financial disclosure. This creates a new level of transparency that may not have been present otherwise. It also creates expectations and clarifications between the parties to help them align and prevent future conflict. For example, imagine a couple who never discussed debt, and one partner secretly has a lot. Without a prenup, that issue might not surface until years later—leading to a tense, emotional fight over feeling blindsided.
The bottom line on prenuptial agreements in Virginia
There you have it—the top 7 things to know before getting a prenuptial agreement in Virginia. From some of the legal requirements like financial disclosure to what happens without a prenup to the ancillary benefits of a prenup, like strengthening your marriage. Now you’re ready to start the prenup process with eyes wide open in Virginia. So take a seat with your partner and start building your future—together—with a thoughtful prenup! Happy planning!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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