The Basics of Premarital Agreements

This is a guest post by Sonali Khadilkar, who practices family law in DC and Virginia. Sonali is the owner of Khadilkar Law PLLC, which has offices in Washington, DC and Vienna, Virginia. Sonali blogs here.

Couples planning a wedding should also plan for the legal aspects of a marriage. These often include merging financial assets, creating wills, designating beneficiaries on life insurance policies, and executing prenuptial agreements.

“Premarital agreement” is the term used in the law, which is synonymous with prenuptial agreement, so you can use them interchangeably. In the District of Columbia, D.C. Code Section 46-503(a) governs what content can be in a premarital agreement. In Virginia, Virginia Code Section 20-150 governs the content of premarital agreements.

What Can Be Included in a Prenuptial Agreement?##

According to the statutes, several things may be included in the prenuptial agreement. Of course, no one has to include all of them if they do not apply.

1. Rights regarding the property of one or both of the parties.
2. The right to buy, sell, transfer, mortgage, encumber, or dispose of property of one or both of the parties.
3. The disposition of property upon separation, divorce, death, or any other circumstance
4. Spousal support/alimony
5. The making of a will to carry out the prenuptial agreement
6. The ownership rights and disposition of the death benefit from a life insurance policy
7. The choice of law governing the agreement
8. Any other matter not in violation of public policy or law.

As you can see, there is a wide spectrum of what can be included in the premarital agreement. The only real items prohibited are those that are illegal or contrary to public policy.

Why Get a Prenuptial Agreement?##

In some ways, the state looks at your marriage as a contract between two people. The premarital agreement is also a contract between two people about how assets should be distributed in the case of divorce or separation.

You should consider a prenuptial agreement if you fall into one of the following categories:

1. You have assets, such as a home or retirement funds
2. You own all or part of a business
3. You may be receiving an inheritance
4. You have children or grandchildren from a previous relationship or marriage
5. One of you is much wealthier than the other
6. One of you will be supporting the other through college or any other educational program
7. You have loved ones who need to be taken care of, such as disabled siblings, or elderly parents
8. You could see a big increase in income because your business could take off, you could land that movie role, or your band could make it big

In the event of separation or divorce, a prenuptial agreement saves the couple both time and money. A valid prenuptial agreement means there is less for the court to do. The couple will save money on attorney’s fees and court costs, as well as save time from avoiding a long trial.

Without a prenuptial agreement, a Judge will divide your assets according to the laws of the state. With a prenuptial agreement, you can decide what you think is fair and plan accordingly. In essence, you can circumvent your state laws about how to divide property in a divorce. The same is true of a will. If you die without a will, the probate court will divide up your assets according to the state laws of intestacy. If you die with an executed will, you can dictate how your assets are distributed.

A premarital agreement is a tool for couples who want to be proactive, and establish financial security and peace of mind, both during the marriage, and afterward.