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Should I Create a Prenuptial Agreement?

Prenuptial agreement form

No one longs to hear the words “prenuptial agreement” as they plan their wedding. However, prenups can be helpful to provide clear answers regarding what will happen in the event that you separate from your spouse, or if one spouse dies.

Provide security to each party

While prenuptial agreements are generally seen as a way to protect the wealthier spouse from losing too much in the event of a divorce, a prenuptial agreement can provide security to both spouses. A prenuptial agreement can guarantee how much a spouse will receive in spousal support in the event of a divorce. The agreement can provide that, should a spouse elect to leave the work force to stay home with children, that spouse will be appropriately cared for in the event of a split. A prenuptial agreement can outline which property should be separate and which marital, and how marital assets will be split in the event of divorce.

Know that your intended heirs will receive their inheritance

Contrary to popular belief, prenups are not only useful in case of divorce. Prenuptial agreements can be particularly helpful to ensure that your estate is distributed according to your wishes upon your death. Under the laws of Virginia, a widowed spouse can choose to take either the portion of the estate explicitly left to them in the will, or to take a spousal “elective share.” This may end up being greater than the amount you wished to leave to your spouse, and interfere with the inheritance you intended for your children. Specifying in a prenuptial agreement that each spouse waives the right to an elective share of the other spouse’s estate will allow you to avoid this issue. This can be especially helpful in cases of a second marriage, where one or both spouses has children from a previous relationship.

Ensure your agreement is reliable

The first step you can take in preparing to create a prenuptial agreement is to create a list of your financial assets and liabilities. Under Virginia law, each future spouse is entitled to receive a “reasonable disclosure” of the property owned, and debts owed, by the other spouse. If that disclosure isn’t made, or was inaccurate, the agreement could later be voided by one of the parties. Make sure that you create a prenuptial agreement sufficiently in advance of your wedding, so that each party has time to consider the agreement carefully and determine whether it’s in their best interests to sign it. If an agreement is forced on one of the future spouses too soon before the wedding, possibly along with threats that the wedding can’t go forward unless the agreement is signed, then a court might later find that there was undue pressure to sign, thus invalidating the agreement. Most importantly, find a family law attorney whom you can trust to create a reliable agreement that takes into account both spouses’ interests.
If you’d like to speak to an experienced Virginia family law attorney about whether a prenuptial agreement is right for you and your future spouse, contact the Charlottesville law firm of Buck, Toscano, & Tereskerz for a consultation, at 434-977-7977.

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