A well-drafted premarital agreement protects what matters most to each spouse going into a marriage — business interests, separate property, family wealth, professional practices, and estate-planning intentions. It removes uncertainty from the most stressful financial questions a relationship can face and, in the unlikely event of divorce, replaces years of contested litigation with a contract the parties chose together.
Randall J. Borden has drafted and reviewed premarital and postnuptial agreements for Northern Virginia clients for more than thirty years. The practice serves clients in Fairfax, Loudoun, Prince William, Arlington, and Alexandria — from straightforward agreements between couples with modest separate property to sophisticated documents protecting professional practices and multi-generational wealth.
What a Premarital Agreement Can Do in Virginia
Under the Virginia Premarital Agreement Act (Va. Code §§ 20-147 et seq.), a premarital agreement can address:
- The rights and obligations of each party in property of either or both spouses;
- The right to buy, sell, lease, transfer, exchange, mortgage, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or other event;
- The modification or elimination of spousal support (within limits);
- The making of a will, trust, or other arrangement to carry out the agreement;
- The ownership rights in and disposition of the death benefit from a life-insurance policy;
- The choice of law governing the agreement;
- Any other matter not in violation of public policy or criminal law.
What a Premarital Agreement Cannot Do
Virginia law does not permit a premarital agreement to adversely affect the right of a child to support. Custody and child-support provisions are decided by the court based on the child’s best interests at the time of dissolution, not by an agreement signed years earlier.
When a Prenuptial Agreement Makes Sense
- One or both parties bring significant separate property into the marriage;
- One party owns a business or professional practice;
- There are children from a prior marriage to protect;
- One party expects significant inheritance;
- One party has significant debt the other wants to protect against;
- The parties want certainty around separate vs. marital property going forward;
- A second marriage where each party wants estate-planning certainty;
- Significant income or earning-capacity asymmetry.
Requirements for an Enforceable Virginia Prenup
For a premarital agreement to be enforceable in Virginia, it must be:
- In writing and signed by both parties;
- Entered into voluntarily — without coercion or duress;
- Not unconscionable when signed;
- Preceded by fair and reasonable disclosure of property and financial obligations, or signed with knowing waiver of that disclosure.
An agreement signed under time pressure — for instance, the day before the wedding — is at risk of being challenged on duress grounds. Best practice is to begin discussions and document drafting months before the wedding.
Independent Counsel for Each Spouse
An enforceable premarital agreement requires both parties to enter the contract with full understanding of what they are giving up. The best way to demonstrate that — and to insulate the agreement from later challenge — is for each spouse to have independent counsel review and advise on the document. We routinely draft on behalf of one spouse and refer the other to independent counsel.
Postnuptial Agreements
A postnuptial agreement is an agreement entered into during the marriage rather than before. Common reasons include:
- Reconciliation after a period of separation;
- One spouse’s receipt of a substantial inheritance;
- Changes in business ownership or career;
- Estate-planning clarity;
- Establishing separate-property treatment of assets acquired during the marriage.
Postnuptial agreements are scrutinized more strictly than premarital agreements because the parties are already married and the consideration analysis is different. Drafting carefully matters.
Drafting That Will Hold Up
A premarital agreement is only as valuable as its enforceability. Common drafting mistakes that result in unenforceable agreements:
- Inadequate financial disclosure exhibits;
- Last-minute presentation (duress);
- One spouse without independent counsel;
- Provisions that are unconscionable on their face;
- Attempts to bind child-support or custody;
- Vague or contradictory provisions;
- Failure to address what happens upon death versus dissolution;
- No sunset or review provision in marriages of very long duration.
Schedule a Premarital Agreement Consultation
The best time to draft a premarital agreement is months before the wedding — not weeks. Call 703-385-8722 or request a private consultation. All consultations are confidential.