Before “I Do”: A Guide to Prenuptial Agreements in Virginia

Prenuptial agreements (“prenups”) are no longer reserved for celebrities, socialites, or the ultra-wealthy. They have become increasingly common among couples of all ages and income levels. According to a Harris Poll[i], the percentage of married or engaged couples in America with a premarital agreement increased from 3% in 2010 to 20% in 2022, a fivefold increase in just over a decade.

So, what is a prenup, who should consider one, and what can it accomplish?

What Is a Prenuptial Agreement?

A prenuptial agreement, also called a premarital agreement, is “an agreement between prospective spouses made in contemplation of marriage.”[ii] In Virginia, premarital agreements become effective only upon marriage, and these agreements are governed by the Premarital Agreement Act.[iii]

Why Consider a Prenuptial Agreement?

Despite the common misconception that prenups anticipate divorce, many couples view them as a planning tool that gives them control, rather than a court, to decide how certain financial matters will be handled if the marriage ends.

A prenuptial agreement may be used to:

Protect significant personal, business, or sentimental assets;
Define what property or debts will remain separate versus marital;
Preserve family or generational wealth;
Protect assets intended for children from a prior relationship; and
Establish financial expectations before marriage.

For many couples, a prenup provides clarity and certainty while reducing the likelihood of future disputes.

What Can Be Included in a Prenup?

Under Virginia’s Premarital Agreement Act, parties may address a wide range of financial and property-related issues, including:

The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
Spousal support;
The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy;
The choice of law governing the construction of the agreement; and
Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.[iv]

The final category is particularly broad and allows couples substantial flexibility in tailoring an agreement to their specific circumstances.

What Cannot Be Included?

Virginia law places the welfare of children above contractual agreements between parents. As a result, parties cannot waive or limit child support obligations through a prenuptial agreement.

Similarly, courts are often reluctant to enforce provisions that attempt to predetermine child custody arrangements because custody decisions must be based on the child’s best interests at the time the issue arises.

And, as factor 8 suggests, nothing that violates Virginia public policy can be included, nor can any provision that would be considered a crime.

How Do You Make a Prenuptial Agreement Enforceable?

Generally, Virginia courts will enforce prenuptial agreements if they are entered into voluntarily and are not unconscionable. To strengthen enforceability, couples should pay close attention to both the substance of the agreement and the process used to create it. Key considerations include:

1. Timing

Avoid presenting a prenup at the last minute. Both parties should have sufficient time to review, understand, and negotiate the agreement before the wedding. While Virginia law does not establish a specific timeline, months are generally better than days.

2. Financial Disclosures

Each party should fully disclose their assets, debts, income, and financial circumstances. Complete disclosure helps demonstrate that the agreement was entered into knowingly and voluntarily.

3. Legal Representation

Although separate attorneys are not required, independent legal counsel is strongly recommended. Legal representation can help ensure both parties understand the agreement and reduce future claims that someone did not appreciate its terms or consequences.

4. Environment During Signing

The circumstances surrounding signing matter. Agreements executed under pressure, intimidation, or significant stress may invite challenges later. Couples should carefully consider the timing, location, and overall environment to help ensure the agreement is signed voluntarily.

By addressing these issues early and thoughtfully, couples place themselves in a much stronger position to create an enforceable agreement.

Final Thoughts

A prenuptial agreement is not simply a tool for the wealthy or for couples anticipating divorce. It is a proactive, planning document that can provide clarity, certainty, and protection before marriage. Whether your goal is to protect a business interest, preserve family wealth, define separate property, or establish financial expectations, a well-drafted agreement can help ensure important decisions remain in your hands.

Because enforceability often depends on both the agreement itself and the process used to create it, it is important to begin discussions early and seek experienced legal guidance. If you are considering a prenuptial agreement in Virginia, the family law attorneys at Briglia Hundley[v] can help you create an agreement that reflects your goals and complies with Virginia law.

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