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What makes a premarital or marital agreement enforceable

| Oct 23, 2020 | Firm News |

Virginia law allows couples to create premarital and marital agreements. These contracts, called prenuptial and postnuptial agreements in other states, are legal and binding unless the couple violates one of the conditions of the law.

For a judge to agree to enforce this type of contract, its creation must meet certain criteria.

Voluntary

Both parties must sign the agreement without any undue pressure. If one person threatens to cancel the wedding unless the other signs it immediately, whether he or she agrees with the terms or not, that may count as duress.

Fair

Determining what is fair may not be easy, which is why judges evaluate the contracts on a case-by-case basis. However, if an agreement results in one spouse relying on public benefits such as the Supplemental Nutrition Assistance Program, a judge may either strike the whole contract or make up for the deficit in other ways.

For example, perhaps spouses agreed that neither would pay alimony. However, one spouse has a significant income and many personal assets and the other makes minimum wage. In this case, the judge may uphold the agreement but divide the marital assets in favor of the spouse with fewer resources. Or, the judge may decide that the contract is unconscionable and order alimony.

Legal

If any of the agreements or stipulations in the contract involve illegal activity, a judge will, at the very least, strike those from the contract. Forbes points out that one unenforceable clause could be a child support agreement that does not meet the state’s guidelines.

Including clauses that violate the law or public policy could lead to a revocation of the entire agreement.