Virginia: A
Statutes
Virginia Premarital Agreement Act of 1985 (UPAA)
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Unconscionability Only at Execution
Courts review unconscionability only at the time of execution (signing), not at enforcement (divorce). Changed circumstances during marriage do not invalidate the agreement. This means Virginia is more likely to uphold a prenup than states with dual reviews
Unconscionability Standard – Two Prong Test
A prenup is invalid if: (1) not executed voluntarily; OR (2) the agreement was unconscionable when executed AND (a) no fair and reasonable financial disclosure was provided AND (b) the party did not voluntarily waive disclosure in writing.
Spousal Support Public Assistance Minimum
Complete waivers of spousal support are permitted and very common in Virginia prenups. There is no bright-line test, though public assistance eligibility is likely the minimum a court will accept.
Timing
No statutory deadline exists, but we recommend signing 60+ days before the wedding with 2-3 weeks review time to reduce challenge risk. Reach out to an attorney 4-6 months before the wedding. Alternatively, sign a prenup before proposing to make informed engagement decisions and separate legal matters from wedding planning.
Independent Counsel
Not required if waived in writing, though both spouses must at least have the opportunity to obtain counsel. Independent counsel dramatically strengthens enforceability if later challenged.
Financial Disclosure
"Fair and reasonable" disclosure of assets, debts, and income is required but CAN be waived through voluntary, express written waiver. Both are included in the PerfectPrenup.
High Burden to Challenge
The challenging party bears the burden of proving: (1) involuntary execution, OR (2) unconscionability at execution AND lack of disclosure/waiver. This makes it difficult to overturn a prenup in Virginia, especially if both parties had counsel.
Child Support
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Chapin v. Chapin, No. 1541-15-4 (Va. Ct. App. Aug. 29, 2017) (unpublished)
Court refused to enforce prenup where husband disclosed $1.8 million in assets but concealed over $500,000 in liabilities, reducing his net worth by nearly one-third and failing to provide fair and reasonable disclosure required under Virginia law.
Odom v. Odom, discussed here, CH22323, 2003 Va. Cir. LEXIS 110 (Va. Cir. Ct. June 11, 2003)
Loudoun County Circuit Court held prenup unconscionable where wife recently immigrated from Russia speaking little English, husband's translator did not translate agreement word-for-word, wife did not understand the 10-year spousal support waiver, and she had no income, prospects, or assets.
Chaplain v. Chaplain, No. 1301-10-1 (Va. Ct. App. Jan. 18, 2011)
On remand, Court of Appeals affirmed prenup was enforceable where wife was college-educated, worked 18 years as secretary to construction company owner in Morocco, was capable of reading English, had ample opportunity to review agreement and consult independent counsel, and agreement contained recitation that it was not unconscionable creating presumption under Va. Code § 20-151(B).
Dwoskin v. Dwoskin, CL-2019-3494 (Fairfax Cty. Cir. Ct. 2019-2020)
Fairfax County Circuit Court enforced prenup protecting husband's $25 million net worth where wife (his former secretary, age 25) knew throughout their 5-year relationship that husband (age 45, third marriage) would not marry without prenup, parties negotiated months in advance despite signing 3 days before wedding, wife had opportunity for counsel but declined, and agreement allowed joint assets to be divided and did not bar spousal support requests.
Galloway v. Galloway, 47 Va. App. 83, 622 S.E.2d 267 (2005)
Court enforced separation agreement giving husband over 90% of assets where wife received agreement night before execution, was informed of right to retain attorney, and voluntarily signed without coercion, establishing that receiving agreement at last minute alone does not constitute oppressive influence when party has opportunity for counsel.
Gust v. Gust, No. 0901-15-2 (Va. Ct. App. 2016) (unpublished)
Court of Appeals affirmed enforcement where parties presented conflicting testimony about prenup circumstances but wife failed to meet her burden under Va. Code § 20-151(A)(1) to prove involuntary execution, demonstrating that credibility determinations favoring enforcement are upheld on appeal.
Rogers v. Yourshaw, 18 Va. App. 816, 823 (1994)
Court held prenup was executed voluntarily where wife "was afforded the opportunity to obtain independent legal counsel but voluntarily declined to do so," establishing that Virginia does not require both parties to have independent counsel, only that they be given the opportunity to obtain it.