Virginia’s Postnuptial Agreements: A Comprehensive Overview

What Is a Postnuptial Agreement?

A postnuptial agreement is a legal understanding between spouses that determines the division of property and financial obligations after the marriage has taken place. Postnuptial agreements, or "postmarital agreements," are used when the parties wish to address asset and debt division as well as other marital rights after they have been married.
A postnuptial agreement serves many of the same purposes as a prenuptial agreement. Basically, after the parties marry, they are protected by the marriage laws of Virginia. Postnuptial agreements therefore have more restrictive judicial review standards than prenuptial agreements. Still, a postnuptial agreement may be a useful tool to draft provisions for property division, spousal support, and debt allocation issues while protecting the postnuptial parties from later litigation over the terms of those property provisions.
Virginia does not require a postnuptial agreement, so there is no legal statute that defines the contract itself. However, the Supreme Court of Virginia has defined a postnuptial agreement in Snyder v. Snyder, 221 Va. 315, 269 S.E.2d 358 (1980), as a:
Postnuptial agreement under which one spouse contracted to pay money to the other wife if he died before her , held, the agreement was valid and enforceable, and since it was entered into freely and voluntarily of competent parties without fraud, imposition or mistake, the trial court did not err in awarding the wife $20,000 under the agreement.
Unlike prenuptial agreements, postnuptial agreements are most often not entered into in contemplation of divorce. Therefore, postnuptial typically involve postnuptial planning for financial obligations and providing for one another in the event of death, but they are rarely about planning for divorce.
Virginia code § 20-147.1 governs the enforceability of postnuptial agreements. Section A of the statute allows the postnuptial agreement to be enforced unless the party resisting enforcement can prove his or her claim by clear and convincing evidence. Virginia code § 20-147.1(B) provides the conditions under which the court will not enforce the contract.
When the court finds that a postnuptial agreement was made:
In light of this statute, there are certain guidelines for drafting postnuptial agreements in Virginia. To begin the process of considering a postnuptial agreement with your spouse, you might contact a family law attorney to evaluate your particular situation.

The Law Behind Postnuptial Agreements in Virginia

In the Commonwealth of Virginia, postnuptial agreements are recognized and regulated by the Uniform Premarital Agreement Act, which took effect on July 1, 2013. The Act addresses the preconditions to the enforceability of a postnuptial agreement, as well as its permissible scope. However, certain areas are subject to greater judicial latitude under Virginia law, meaning that a postnuptial agreement may be enforceable even in areas not necessarily covered by the statute or where neither spouse has provided an economic benefit to the other.
Virginia law does not require full and fair disclosure before a postnuptial agreement can be established, and neither party is required to be represented by an attorney. However, as with any contract, full and fair disclosure is required to keep the agreement enforceable. While Virginia law is more permissive than most other states, full disclosure is always preferable for both parties.
Under Virginia law, agreements settling spousal support and property division entered into prior to a divorce are enforceable, whereas agreements concerning the laws of child custody, child support or visitation are not enforceable. Enforceable provisions concerning spousal support must be in writing and signed by both parties, and must waive the right to spousal support (in whole or in part) in exchange for something of value. In short, if you are agreeing to nothing at all rather than waiving the right to ten years of spousal support, you are not opting for spousal support because there is no support to negotiate.

Advantages of A Postnuptial Agreement

While postnuptial agreements in Virginia are often seen as a negative connotation, they are often used by couples as a means of a positive proactive planning tool. A couple that plans for their risks and discusses them openly to reach a resolution is in a better place than a couple who ignores risks or does not communicate. In fact, most self-made millionaires have a written plan regarding what happens to their assets in case of divorce or death. Here are a few examples on why you should consider drafting a postnuptial agreement:
Protecting the Breach. Postnuptial agreements (much like prenuptial agreements) can be written to anticipate the high costs of divorce. For instance, if a spouse enters the marriage with considerable debt which may have the other spouse liable if not properly protected, a postnuptial agreement would allocate liability for that debt so that spouse is protected during the marriage and in the divorce.
Incentive for Marriage. Many clients ask about putting clauses in a postnuptial agreement that incentivize the other spouse to remain in the marriage. For instance, if a spouse provides an incentive like receiving marital property after a certain threshold or providing a lump sum divorce out of marital funds if the parties remain in the marriage a certain amount of time. While this sounds good, in practice these types of clauses do not hold up in Virginia for various reasons.
Protecting Infidelity. Many clients who discover infidelity during the marriage will contact a divorce attorney to draft a postnuptial agreement that holds the spouse who had the affair accountable. While these types of infidelity clauses are difficult to enforce, a good postnuptial agreement, when properly drafted, can help you recover any losses you may incur from a spouse’s infidelity.
Protecting Inheritance. A spouse who receives an inheritance may want a postnuptial agreement to protect any funds or property received during the marriage.
Creating Structure in Communication. Many clients come to our office seeking a postnuptial agreement to create a framework for future discussions with their spouse for major life decisions. These couples typically do not plan to divorce and still love their spouse. However, due to work or other personal demands they require a way to communicate effectively with their spouse. By entering into a postnuptial agreement, the spouses are forced to sit down together and put the other spouse in the loop of future plans. Over the course of a long marriage or relationship, many spouses note that they slowly start to drift apart, leading them to no longer be involved in each other’s lives. This situation can be avoided through creating a framework for communication by using a postnuptial agreement.

Common Provisions in a Virginia Postnuptial Agreement

Common Terms of Postnuptial Agreement
Most postnuptial agreements will typically include the following types of clauses:
Asset Division:
The parties can voluntarily divide, or agree to divide any assets either a spouse owned prior to the marriage or acquired during the marriage. The parties can also agree that each will keep the property owned by that spouse at the time of the entry of the postnuptial agreement.
Debt Responsibility:
The parties can agree that each spouse is responsible for their own debts arising from the date of the agreement forward. The parties can agree that debts arising before the date of the agreement are the debts of the party whose debt it is.
Spousal Support:
The parties can agree that neither spouse will be entitled to spousal support in the event of a divorce. They can agree to a specific amount of spousal support. They can agree that each spouse will be entitled to spousal support.
Division of Property Upon Separation:
If the parties agree to divide property in the event of a divorce or separation, the postnuptial agreement can be drafted to divide property exactly as they could if they were unmarried. The parties also have the option of having a divorce court divide the property according to the equitable distribution laws.
Other Provisions:
The agreement may also contain other provisions, such as confidentiality clauses, waivers of spousal rights to make a will, specific language that states marital agreements in Virginia can be changed at any time, and that both parties understand the agreement and have had legal counsel.

How to Create a Postnuptial Agreement in Virginia

In Virginia, the process for creating a postnuptial agreement is fairly straightforward. It begins with one party presenting the other with the proposed terms of the agreement. Drafting the postnuptial agreement will require that both parties disclose certain information that is relevant to the creation of the agreement. For example, it is important that all assets and liabilities be fully disclosed so that the parties can divide their finances fairly and create a realistic marital-bond that can be sustained over a long period of time. The parties should also agree on how their property will be distributed in the event of a divorce or death, and how spousal support will be handled. Finally, the parties should outline each parent’s child-related obligations under the postnuptial agreement.
While some people choose to draft a postnuptial agreement entirely on their own , it is highly recommended that you speak with a Virginia family law attorney. A lawyer will be able to help you review the terms of your postnuptial agreement, and advise you regarding any issues that may arise. He or she can help you reach a settlement and facilitate an amicable marriage agreement. Moreover, hiring a family law attorney will decrease the likelihood that a court will view your postnuptial agreement as unfair or involuntary.
While there are no specific grounds for denying a postnuptial agreement in Virginia, there are many factors that may be taken into consideration when determining whether a postnuptial agreement is fair and reasonable. In Virginia, a postnuptial agreement may be held unenforceable due to: (1) lack of voluntariness; (2) fraud; (3) duress; (4) unconscionability; or (5) justifiable reliance. A family law attorney will be able to help you draft your postnuptial agreement so that it meets all of Virginia’s example requirements.

Can A Virginia Court Enforce A Postnuptial Agreement?

In Virginia, postnuptial agreements are generally enforceable in much the same way as prenups. If the court finds that the postnup was entered into voluntarily and that there was adequate disclosure by the parties, as well as a reasonable understanding of their respective financial circumstances, then the court will typically deem it valid.
However, the 2014 Virginia Supreme Court case of Albergotti v. Albergotti cast some doubt on how enforceability of postnuptial agreements would be determined going forward. The court suggested that it would apply the same standards for striking down postnuptial agreements as for premarital agreements. Unlike other types of contracts, premarital agreements are held to the requirements of the Uniform Premarital Agreement Act. The Act requires that there be a full disclosure of assets and liabilities, that a reasonable understanding of the financial circumstances of each party prior to signing the agreement be obtained, that the contract be conscionable (not based on circumstances that would make it unfair to not disclose certain property) or that the rights granted to either party were voluntarily and explicitly waived, and that he act of signing be knowing and voluntary.
A postnuptial agreement may additionally be invalidated if both parties did not have counsel, the provision in question in the agreement is not conscionable, or the provision in question was unconscionably excessive. There are no currently known successful challenges to a postnuptial agreement based on unconscionability, though this could change in the future.

Examples: Actual Cases in Virginia

To provide context on the use of a postnuptial agreement in Virginia, here are three hypothetical examples: A young married couple, both in their early 30s, has just welcomed their first child. As their son is about to turn 1, they realize that they should consider putting a postnuptial agreement in place in the event that anything should happen to one or both of them. A traditional marital property agreement will only become effective at the time of separation, but certain modern marital property agreements allow for effective dates other than the day they are signed. In this case, they decide that since they are not contemplating an imminent separation, the timing of when the agreement becomes effective is unimportant. To this end, they draft a financial disclosure worksheet detailing all separate and marital property, as well as debts, income, and retirement benefits; then they fill out a marital settlement agreement in which they set out the terms for dividing their assets and debts in case of separation or death. After a period of negotiation, the agreement is signed and notarized, and they now have peace of mind to move forward.
A couple with older children are contemplating divorce. One spouse has substantial separate property, while the other is happy to waive any rights to equitable distribution of same. Although the two are expecting to settle the pending property division litigation, they want to make sure that they settle all future claims for equitable distribution and present and future sections 20-91 support obligations by entering into a postnuptial agreement. They negotiate a memorandum of understanding that states their intention to settle all property and spousal support obligations. Once the postnuptial agreement is drafted, they review its terms, execute it on the same date before a notary public, and file the appropriate documents with the court granting their decree of divorce.
The parties signed a postnuptial agreement shortly after getting married, including a waiver of all rights to equitable distribution and alimony/spousal support. One year later, one spouse filed for divorce, and the other spouse sought equitable distribution of the marital estate, arguing that the postnuptial agreement was not enforceable as it was obtained with no consideration other than being an expectant spouse.

Postnuptial Agreement FAQs

Do you and your spouse have continuing uncertainty about how marital assets will be handled if some future event or occasion causes your marriage to end? Even a relatively healthy couple may want a postnuptial agreement as their assets grow and the unintended consequences of divorce loom larger. While a prenuptial agreement is valid only if it is executed prior to marriage, postnuptial agreements can be signed at any time during a marriage. As a result, postnuptial agreements have become more prevalent in the past few years.
What are the requirements for postnuptial agreements?
To create a valid postnuptial agreement in Virginia, both spouses must sign the document. An agreement to be enforceable in Virginia must also be fair, not reach an unconscionable result and be properly notarized. Both you and your spouse must have had knowledge about the amount of the assets you own before signing the postnuptial agreement. The court may ignore a postnuptial agreement that does not meet these requirements even if it was signed voluntarily by both parties.
Does a postnuptial agreement relieve either spouse of a legal duty to support the other?
No. Absent a court order , after a divorce one spouse has a legal duty of support to the other which cannot be altered or reduced by a postnuptial agreement.
What are the consequences of violating a postnuptial agreement?
Virginia courts have stated that if one spouse fails to comply with a postnuptial agreement, then the other spouse may ask a court to award them the rights they were supposed to receive under the postnuptial agreement or the right to have the circumstances reevaluated by the court.
Why should you consider a postnuptial agreement?
While marriage often begins as a romantic, idealized affair, many people may not think like this once they reach retirement age or begin acquiring substantially more assets. Changing priorities, incomes and lifestyles might also lead some married couples to want to establish in advance what will happen to their marital assets in the event of a divorce.