The Virginia legislature passed a statute in 1985 that explicitly states the formalities for the enforcement of premarital agreements. Unfortunately, some premarital agreements don’t work out as the parties anticipated, and the aforementioned statute lists the reasons for which a premarital agreement may be declared unenforceable.
Statutory grounds for unenforceability
The person against whom enforcement of a premarital agreement is sought can defeat that effort by proving that the person did not execute the agreement voluntarily or that the agreement was unconscionable before it was signed and that the person against whom enforcement is sought did not have an adequate opportunity to have the agreement reviewed by a knowledgeable attorney.
Another ground for unenforceability of the agreement is proof that the person seeking enforcement did not make a fair and reasonable disclosure of his or her assets and liabilities.
Failure to follow the statutory formalities
Most, if not all, modern-day prenuptial agreements are drafted by knowledgeable lawyers, and consequently, these agreements rarely violate the statutory formalities. However, knowing the formalities can help a person understand if improper demands have been made by the other party.
All prenuptial agreements must be in writing and signed by both parties before the wedding. A premarital agreement is void on its face if it was not signed by both parties before the wedding.
More on voluntary agreement
Another argument for attacking a pre-marital agreement is proof that the party seeking enforcement made incorrect statements of material fact to the other party, in other words, committed fraud to obtain the future partner’s signature. Fraud comes in many forms, including an outright misstatement of fact.
If one party has significantly more assets than the other, that person may conceal all or some of his or her assets to protect those assets from being divided if the parties should decide to divorce. False statements about assets may also be used as a negotiating tool to convince the other party to agree to a term that is not in that party’s best interest.
The need for legal advice
Any prenuptial agreement should be reviewed by an experienced attorney before it is signed. If one party challenges the agreement, both parties will need competent lawyers for the trial that will follow.