A marital agreement is reached between two married people; reduced to writing and signed by both parties. There are various marital agreements, such and pre and post-nuptial agreements. All are required to be in writing and signed by the parties. Marital agreements can be complicated to negotiate since there are many factors that go into them. Since there are various aspects of creating a marital agreement and types of Virginia marital agreements, it can be beneficial to have a marital agreements attorney.
Marital Agreement Motivation
A marital agreement avoids the emotional and financial burden that can ultimately be created if the parties should separate or divorce. By defining certain rights of the respective parties in a marital agreement, those issues become resolved in a permanent way and therefore the marital agreement would need to be submitted to a court for litigation if the parties were to later get divorced.
Different Types of Agreements
There are two main types of Virginia marital agreements. Pre-nuptial agreements, which are not considered to be marital agreements, are agreements executed by people before they enter into a marriage. Post-nuptial agreements, which are agreements that can happen at any point after the parties have been legally married and could be forward-thinking regarding any potential of divorce in the future; what should happen with property and support.
The marital agreements done at the time of separation and divorce are typically referred to as property settlement agreements. These agreements are essentially settlements of issues that could be litigated in the divorce case that may already be pending or that may be filed shortly thereafter.
Post-nuptial agreements are entered into between the parties after they are married, but not necessarily upon separation. These agreements are becoming more common as spouses commonly own assets when they enter marriages. Parties also settle the issues in divorce cases much more frequently with a property settlement agreement rather than litigation.
Nature of Agreements
When a married couple separates, it is normal to have some level of negative emotion toward each other at times. Agreements are done in the context of two people who do not want to submit their very personal issues for determination by a judge who does not know very much about them, and people who are interested in resolving their issues in a way that they can control without having to pay tens of thousands of dollars to litigate those matters in a courtroom.
What Marital Agreements Can Cover
A marital agreement can cover a number of issues depending on what the parties want to agree to. It could encompass how the parties define separate property versus marital property; how assets would be divided upon separation and divorce; issues related to alimony; or each party’s right to their spouse’s property upon his or her death. The one thing that cannot typically be dealt with in a post-nuptial agreement, but perhaps could be dealt with in a marital separation agreement, is the range of issues relating to minor children.
In post-nuptial agreements, parties are not allowed to agree to custody and visitation terms or child support terms. This would not be enforceable. The reason is because the appropriate custody or support scenario, what is legally supposed to happen, is that determination is to be made contemporaneous with the separation or at the time the parties are filing for divorce. As a result of the post-nuptial agreement, the parties are not permitted to make agreements that would apply in the future regarding events that have not yet occurred.
Property settlement agreements, when a marriage has ended, can cover a number of things. Sometimes, parties will be able to agree upon parameters related to property division and alimony, for example, but are not able to agree on matters related to the children.
In those cases, they might sign a property settlement agreement that deals with property division and/or alimony but if they cannot resolve custody, visitation, and support, those issues may end up getting submitted to the court for determination by a judge.
The best and most effective agreements are those that deal with as many issues as possible. The more issues the parties are able to resolve by agreement, the less they have to litigate before a judge.
A fully comprehensive property settlement agreement would include property division, allocation of debt, resolution of alimony (if appropriate), resolution of child support, resolution of custody and visitation, perhaps addressing whether a new life insurance is required to be carried for any period of time, and all other matters that are encompassed by the divorce case.
Benefits of an Attorney
If you want to negotiate a marital agreement, it can be complicated. It is beneficial to hire a marital agreement attorney who can assist you during this process. Agreements are done between two married people. It can be complicated because both parties have assets, and there are different types of Virginia marital agreements. You will want to choose the right lawyer for you who is knowledgeable and experienced in this area.