Marital agreements in Virginia are between both parties, have to be made in writing, and signed by the parties. Further, pre-marital agreements do not need to have consideration. A post-nuptial agreement or a property settlement agreement must have consideration in order to be valid.
The purpose of a marital agreement is to define the rights of the respective parties, both during the marriage and if the marriage should later on dissolve. To determine the elements involved in drafting an agreement, it is important to consult with a Virginia marital agreement lawyer as soon as possible.
Property Division Provisions
Marital agreements could be used to resolve most financial issues between the parties. That would include property division, allocation of debts, and alimony. It could also include provisions relating to life insurance as required to be maintained for the benefit of the other party or for the minor children.
The elements that cannot be included in a Virginia marital post-nuptial agreements are provisions for custody, visitation, or child support.
Executing a Marital Agreement
The Virginia marital agreement must be in writing, signed by the parties, and have consideration (something of value exchanged for something else of value). The law also requires that both parties sign the agreement knowingly, and without any kind of duress or undue influence, so it may be upheld in court.
The element of full disclosure in a Virginia marital agreement means disclosure by both parties of all facts that are materially relevant to the issues resolved in the agreement. For example, if an agreement that is executed by two people deals with spousal support, then full disclosure would involve both parties sharing their financial means.
The paying party is to provide all information related to their financial means to pay support, and the other party disclosing what their financial means are to support themselves, plus what their financial needs are. The full disclosure must involve both parties sharing all information that would impact a decision to agree to the provisions in the agreement.
In most cases, if it is later discovered that there has been a material omission of information in the disclosure, that could be grounds to render the agreement unenforceable.
Virginia marital agreements can be enforced by contract law as they are legal contracts between two parties. This is a crucial element of a Virginia marital agreement. In certain circumstances, particularly with property settlement agreements at the end of the marriage when the parties are separating, those agreements are incorporated into court orders such as final support order.
In addition to being able to enforce the agreement under contract law, when an agreement is incorporated into a court order, it can also be enforced by a party asking the court to hold the party at fault in contempt. When agreements are incorporated into court orders, the terms of those agreements become orders of the court. If a party does not follow these terms, they can be held in contempt.
In terms of who enforces these agreements, it is up to the party who has been hurt by the breach to take the matter to the court, whether by contract law or contempt of court, in order to seek enforcement.
Rights of an Individual
With the exception of matters relating to minor children that may be well into the future, parties have the right to create parameters for various aspects of finances and other things related to marriage in order to avoid litigation later on as an important element in a Virginia marital agreement. The parties have the right to decide how their case should be resolved and to know that those terms will be carried out by the court later on.