The all-inclusiveWest Virginia prenup

The controlling statute & cases

What law governs prenups in West Virginia?

West Virginia adopted its version of the Uniform Premarital Agreement Act (UPAA) in 2023, codified in W. Va. Code §§ 48-1A-101 through 48-1A-1101. This, coupled with state case law, governs prenuptial agreements in the state. West Virginia regularly enforces prenuptial agreements under its prenuptial agreement statute, as long as the prenup meets the statutory requirements, such as being in writing, signed, and including statements regarding counsel. (§ 48-1A-201).

Is West Virginia a UPAA state?

Yes, West Virginia is one of the latest states to adopt the UPAA, just recently in 2023. The West Virginia version of the UPAA adds additional requirements to the formalities of a prenup, including a statement that each party has had the opportunity to hire counsel. (§ 48-1A-201). The reason behind this addition is to ensure parties fully understand that they have a right to seek counsel, and each party must have enough time to do so. Just like the model UPAA, West Virginia's version of the Act is designed to promote consistency and predictability in how prenuptial agreements are created and enforced in the state.

Requirements for a West Virginia prenup

What are the requirements for a prenup in West Virginia?

Every prenup in West Virginia must be in writing, signed, and include a statement that both parties have had an opportunity to consult with counsel. In addition, the parties must enter into the agreement voluntarily, with full financial disclosure of both parties' assets and debts. The agreement must also not be unconscionable (i.e., meaning overly unfair). While not a strict requirement, having both parties receive legal representation creates a presumption of validity.

Requirements:

• In writing
• Signed by both parties
• Statement that each party had the opportunity to consult counsel
• Entered into voluntarily
• Full financial disclosure of assets and debts
• Not unconscionable

Does a prenup need to be notarized in West Virginia?

No, there is no requirement for a West Virginia prenuptial agreement to be notarized; however, it is often considered best practice, and many lawyers will recommend doing this anyway as an easy, added level of protection. Notarization is the act of signing a document in front of a notary public. The notary public will check identification and then affix their official seal to the document to show a court that it was validly executed by the proper parties. This can help deter arguments of fraudulent signatures.

Do both parties need a lawyer for a prenup in West Virginia?

Attorneys are not strictly required, but the absence of an attorney is dangerous to the enforcement of the agreement. For a prenup in West Virginia to be "presumed valid," both parties must be represented by their own attorney. (Owen v. Owen, 233 W. Va. 521 (2014)). When either party is not represented by an attorney, the burden of proving the agreement is valid shifts to the party seeking to enforce it. This can be a difficult burden to overcome because this person may have to prove (years later) what their spouse knew, understood, and intended when signing the agreement, even though memories fade and evidence may no longer be available. The bottom line is that West Virginia couples should each hire an attorney to create valid agreements and avoid litigation down the road.

What makes a prenup invalid in West Virginia?

A West Virginia prenuptial agreement may be deemed invalid if it is not in writing, signed, or doesn't include a statement that both parties understand they have the opportunity to seek counsel. (§ 48-1A-201). In addition, both parties must enter into the agreement voluntarily and with proper financial disclosure (or proper waiver thereof). (§ 48-1A-601). A West Virginia court may also deem an agreement unenforceable if it is unconscionable (egregiously unfair) or against public policy. (§ 48-1A-601). It's also important to note that having an attorney represent each party creates a presumption of validity. Without attorneys, there is a harder hill to climb when trying to prove an agreement is valid. (Owen v. Owen, 233 W. Va. 521 (2014)).

How long before the wedding should I sign a prenup in West Virginia?

There is no set timeline for getting a prenuptial agreement in West Virginia; however, a court may consider the time it was presented to the other party and the date it was signed in considering its validity. For example, in Owen, the West Virginia court found an agreement signed four days before the wedding to be unenforceable, but not just because of the specific number of days, but instead because the wife wasn't presented a copy beforehand and had no opportunity to review it with counsel (Owen v. Owen, 233 W. Va. 521 (2014)). In other words, it is possible to enforce a prenup signed a few days before the wedding as long as the parties had legal representation and/or opportunity to seek counsel.

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What can & can't be in a West Virginia prenup

Does cheating void a prenup in West Virginia?

No, cheating does not void a prenup in West Virginia. The grounds for voiding a prenuptial agreement include involuntarily entering into the agreement, unconscionability of the agreement (i.e., egregiously unfair), improper execution (i.e., lack of signatures), and sometimes lack of independent legal counsel. Adultery/infidelity alone is not one of those grounds. In other words, while cheating generally won't invalidate a prenup, it can trigger contractual obligations if the parties specifically agreed to those consequences in the agreement.

Are infidelity clauses enforceable in West Virginia?

It is possible for infidelity clauses to be enforced in West Virginia. While no reported West Virginia appellate decision squarely addresses the enforceability of a traditional "cheating clause," a West Virginia appellate court has stated that prenups are governed by contract law, meaning that parties may contract to any terms as long as they are not against public policy or other laws. In this West Virginia case (Lee v. Lee), the court interpreted a spousal support provision that said didn't apply if she entered into "another relationship." Rather than flat out rejecting the clause as unenforceable under state public policy as other states have done, the court instead focused on the ambiguity of the term "another relationship." The court ultimately rejected to enforce the clause in the husband's favor because it was unclear what "relationship" meant. (Lee v. Lee, 721 S.E.2d 53 (2011)). However, the bottom line is that West Virginia law hasn't squarely addressed this issue by the legislature or judiciary, so it may be possible to enforce infidelity clauses. Some attorneys may refuse to include them still because they can lead to hefty litigation, as you can see in the Lee case, when courts must inquire into drafted language and relationship conduct.

Can a prenup include child custody in West Virginia?

No, West Virginia prenups may not include a provision regarding child custody under W. Va. Code § 48-1A-701(b), which states that custodial provisions "are not binding on the court." This could also be interpreted to mean that you may include custodial provisions in your prenuptial agreement, but the court has the last say on the matter. Instead, a court will apply the best interests of the child standard when determining the custody arrangements and may not honor what is put into the prenup. (W. Va. § 48-9-102).

Can a prenup protect a business in West Virginia?

Yes, a prenup can protect a business in West Virginia, as long as the agreement specifically states that it does. For example, a prenup can state that all business interests, such as income, assets, equity, and debt, whether existing or future, are the separate property of one person. When something is deemed separate property, it is not divisible in a divorce. On the other hand, without a prenup, a business and/or its appreciation/growth may be considered marital property, and thus, divisible in the event of a divorce.

Can a prenup protect inheritance in West Virginia?

Yes, a prenup can protect inheritance in West Virginia, as long as the agreement specifically states that it does. Protecting inheritance is a common use for a prenup and should specifically state that any future inheritances that either party receives should remain the separate property of the respective party. Without a prenup, an inheritance might still be deemed separate property under default law (W. Va. Code § 48-1-237). However, any appreciation or commingling of the inherited assets can easily turn it into marital property and be divisible in a divorce, which is where a prenup would come in to ensure it remains separate.

Marital property in West Virginia

Is West Virginia a community property state?

No, West Virginia is not a community property state, but rather, an equitable distribution state. There are only nine states that are community property states, and the rest, including West Virginia, are equitable distribution. "Community property" and "equitable distribution" are two property division frameworks used by U.S. courts to divide property in a divorce. Community property generally abides by the principle that everything acquired during the marriage is split 50-50, regardless of who bought it or contributed to it. On the other hand, equitable distribution grants a court discretion to divide property on a case-by-case basis, depending on the situation at hand.

How is property divided in a divorce in West Virginia without a prenup?

West Virginia laws presume all property acquired during the marriage should be split 50-50, but may deviate from the equal split if it deems necessary under certain circumstances, such as one party's homemaking services (W. Va. Code §§ 48-7-101, 103). Some other circumstances a court may consider when deviating from the automatic 50-50 split are each party's earnings, the contributions of each party, employment, other earnings, and the extent one party helped the other party increase their earnings through education or career advancements.

What is separate property in West Virginia?

Separate property is the property that is not divided in a divorce; it stays with the individual person. Separate property in West Virginia is generally defined as property acquired before the marriage and received by gift/inheritance, and the passive appreciation on that separate property. (W. Va. Code § 48-1-237). Separate property also includes any property validly excluded by a prenuptial or postnuptial agreement.

Spousal support in West Virginia

Can a prenup waive alimony in West Virginia?

Yes, a prenup can waive alimony in West Virginia, provided the waiver is contained in an otherwise valid and enforceable prenuptial agreement. An alimony waiver allows one or both spouses to give up the right to seek spousal support in the event of a divorce. West Virginia law expressly recognizes that a spousal support obligation may arise from the terms of an antenuptial agreement, meaning parties are generally free to define, limit, or waive future alimony obligations by contract.

Does a prenup prevent spousal support in West Virginia?

Yes, a prenuptial agreement can prevent spousal support (also called "spousal maintenance" or "alimony") in West Virginia if it includes a valid waiver of alimony. Because prenuptial agreements are contracts, couples may decide in advance whether either spouse will be entitled to receive support in the event of a divorce. In the absence of a successful legal challenge to the agreement itself, courts will generally enforce those terms as written.

How is alimony determined in West Virginia without a prenup?

Without a prenuptial agreement, alimony in West Virginia is determined by the court after considering the factors set forth in W. Va. Code § 48-6-301. Unlike some states, West Virginia does not use a mathematical formula to calculate spousal support. Instead, the court evaluates numerous factors, including the length of the marriage, each spouse's income and earning capacity, age, physical and emotional health, education, employability, the standard of living established during the marriage, each party's financial needs and resources, contributions to the other spouse's education or career, and any other factor the court considers necessary to reach a fair result. The court may award different forms of spousal support, including temporary, rehabilitative, permanent, or lump-sum support, depending on the circumstances of the case.

How much does a prenup cost in West Virginia?

How much does a prenup cost in West Virginia?

The cost of a prenup in West Virginia varies. It can be anywhere from $1,500 to $5,000 or more, depending on the attorney's hourly rates, experience, cost of living area, accolades, and the needs of the clients. For example, if the clients have extensive financials, a lot of back-and-forth negotiations, or intricate drafting requests, it may cost them more than a person with simple finances, negotiations, and requests.

What is the cheapest way to get a prenup in West Virginia?

Typically, the cheapest way to get a prenup in West Virginia is through an online prenup and having an attorney review and advise on that online prenup. This cuts down on the attorney's drafting time and ultimately the overall cost of the prenup. You may also find an attorney with lower hourly rates or even flat rate offerings for prenuptial agreements that are also reasonably priced.

How much does a prenup lawyer cost in West Virginia?

The average lawyer in West Virginia charges $196 per hour, which is relatively low compared to higher cost-of-living states where lawyers charge $350 or more per hour. A West Virginia prenup lawyer may charge their hourly rate or provide a flat rate for their prenuptial agreement services. In addition, some attorneys may charge a "retainer," which is a down payment on legal services that the attorney charges against. It may need to be refilled if services are more extensive, or it may be refunded if the services go under the expected amount of time.

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How to get a prenup in West Virginia

How do I get a prenup in West Virginia?

You can get a prenup online and have attorneys review the agreement or you can go the traditional route by hiring two separate attorneys to both draft and advise you and your fiancé on the terms.

Can I write my own prenup in West Virginia?

It is not advisable to write your own prenup in West Virginia because, without legal representation, the agreement is presumed invalid and the party seeking to enforce it has the burden of proving it is valid. This can sometimes be an uphill battle to bring solid evidence that each party entered into it voluntarily. However, it may be possible to have a self-drafted prenup hold up in court, it just becomes much more difficult, which is why it is not recommended to write your own prenup in West Virginia.

How long does it take to get a prenup in West Virginia?

It depends on how quickly both partners complete the process, whether there are negotiations over the terms, and whether either or both parties choose to hire an attorney. Couples who are in agreement on the major issues and promptly complete their financial disclosures can often finish much faster than couples who negotiate extensively. With HelloPrenup, couples can typically generate a prenuptial agreement in about two hours. If one or both parties retain a West Virginia attorney to review or negotiate the agreement, the process generally takes anywhere from a few days to a week, depending on the attorney's availability and the complexity of the agreement.

Do I need a lawyer to get a prenup in West Virginia?

While attorneys are not strictly required to create a valid prenuptial agreement in West Virginia, not having one can significantly increase the risk that the agreement will later be challenged. In Owen v. Owen, the court held that a prenuptial agreement is presumed valid when both parties are represented by independent legal counsel. If either party does not have an attorney, that presumption does not apply, and the burden shifts to the spouse seeking to enforce the agreement to prove that it was entered into knowingly and voluntarily. This can be a difficult burden to meet years later, when memories have faded and evidence may no longer be available. For that reason, although West Virginia law does not require attorneys, it is strongly recommended that each party have its own independent lawyer to maximize the likelihood that the agreement will be enforced.

Caselaw & enforceability

Are prenups enforceable in West Virginia?

Yes. West Virginia recognizes and enforces valid prenuptial agreements. The state has adopted the Uniform Premarital Agreement Act, which permits couples to contract regarding matters such as property rights, spousal support, and other financial issues before marriage. Courts will generally enforce a prenup so long as it satisfies the statutory requirements and was entered into voluntarily. In addition, the Owen v. Owen decision established that a prenup is presumed valid when both parties are represented by independent legal counsel, making attorney representation particularly important in West Virginia. (W. Va. Code §§ 48-2-101 through 48-2-604; Owen v. Owen, 233 W. Va. 521 (2014)).

How hard is it to break a prenup in West Virginia?

It depends on the circumstances, but it can be difficult if the agreement was properly prepared. A spouse seeking to invalidate a prenup generally must show that the agreement was not executed voluntarily, failed to comply with West Virginia law, or is otherwise unenforceable. If both parties had independent attorneys when signing the agreement, the prenup enjoys a presumption of validity under Owen v. Owen. Without that presumption, the spouse seeking enforcement bears the burden of proving that the agreement was entered into knowingly and voluntarily, which can lead to more extensive litigation.

Can a judge throw out a prenup in West Virginia?

Yes. A West Virginia court may refuse to enforce all or part of a prenuptial agreement if it does not meet the requirements of the state's version of the Uniform Premarital Agreement Act. For example, a court may decline to enforce a prenup that was not signed voluntarily or that otherwise fails to satisfy the statutory standards for enforceability. (W. Va. Code § 48-2-106).

What can void a prenup in West Virginia?

A prenuptial agreement may be held unenforceable if a party proves that they did not execute it voluntarily or if the agreement fails to satisfy the requirements of West Virginia law. Other common challenges include allegations of fraud, duress, or inadequate financial disclosure. Additionally, if the agreement waives spousal support and enforcement would cause one spouse to become eligible for public assistance, a court may require support to the extent necessary to avoid that result. (W. Va. Code § 48-1A-601).

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Duration & after-marriage

How long does a prenup last in West Virginia?

A prenuptial agreement in West Virginia generally lasts for the duration of the marriage and continues to govern the parties' rights upon divorce or death unless the agreement itself provides otherwise. Prenups do not automatically expire after a certain number of years. However, couples may choose to include a "sunset clause," which causes all or part of the agreement to terminate after a specified period of marriage, such as a tenth or twenty-fifth wedding anniversary. In other words, the agreement "sunsets" on the selected anniversary date that the couple chooses.

Can you get a prenup after marriage in West Virginia?

No. Once a couple is married, they can no longer enter into a prenuptial agreement. Instead, they may enter into a postnuptial agreement. West Virginia law recognizes agreements between spouses made during marriage, although postnuptial agreements are subject to different legal standards than premarital agreements because spouses owe one another fiduciary duties. These agreements are commonly used to modify or replace the financial arrangements established before marriage.

Can you change a prenup in West Virginia?

Yes. West Virginia law expressly allows spouses to amend or revoke a prenuptial agreement after marriage. Any amendment or revocation must be in writing and signed by both parties. Once the parties are married, an amendment is effectively a postnuptial agreement and should be entered into voluntarily with the same care as any other marital agreement. (W. Va. Code § 48-1A-501).

Cross-border & recognition

Is a prenup signed in another state valid in West Virginia?

Generally, yes. West Virginia courts will typically recognize a prenuptial agreement that was validly executed in another state. If the agreement contains a choice-of-law provision selecting another state's law, West Virginia courts will often honor that provision unless doing so would violate a fundamental public policy of West Virginia. As with any interstate contract issue, the specific facts and the language of the agreement matter.

What happens to my West Virginia prenup if I move to another state?

In most cases, your prenuptial agreement will remain valid after you move. States generally recognize prenups that were validly executed elsewhere. However, the law that ultimately governs interpretation of the agreement may depend on the agreement's choice-of-law clause and the law of the state where the divorce is filed. For example, if your prenup specifies that West Virginia law governs the agreement but you later divorce in another state, that state's court will usually determine whether to apply West Virginia law or its own law to particular issues. As a result, while the agreement itself will often remain enforceable, the legal rules used to interpret certain provisions may vary from state to state.