The Virginia Premarital Agreement Act Explained: What You Can and Cannot Legally Include

When preparing for marriage in the Commonwealth of Virginia, couples have broad freedom to define their financial future together. Governed by the Virginia Premarital Agreement Act, these contracts allow couples in Alexandria, Richmond, and Roanoke to bypass the state's default divorce laws. However, this freedom is not absolute. Including the wrong provisions can jeopardize the entire document. Understanding what is legally permissible-and what is strictly prohibited-is critical before signing. To ensure your agreement is airtight, you should consult an attorney from our directory.

What You Can Legally Include

Virginia law grants couples massive leeway when dealing with their own personal finances and property rights. Under Va. Code Ann. § 20-150, parties to a premarital agreement may contract with respect to several specific areas.

Property Division and Debt Allocation

You can clearly define what happens to assets purchased before the marriage (separate property) and assets acquired during the marriage (marital property). For example, you can stipulate that the house you own in Fairfax will remain 100% yours upon divorce. Additionally, you can include clauses that prevent you from being held liable for your spouse's pre-existing student loans or credit card debt.

Spousal Support (Alimony) Waivers

Unlike some states, Virginia allows couples to completely waive their right to receive spousal support in the event of a divorce. You can also cap the amount of support (e.g., setting a maximum of $2,000 a month for three years) or dictate a specific lump-sum payout instead of ongoing monthly payments.

Life Insurance Mandates

You can legally require your spouse to maintain a life insurance policy naming you as the primary beneficiary. This is a very common tool used to ensure financial security, especially in marriages where one spouse is the sole breadwinner or if there are children from a previous relationship.

What You Cannot Include

While you can negotiate your own rights, you absolutely cannot negotiate the rights of your children or violate public policy. If these forbidden clauses end up in front of a judge at the Richmond Circuit Court, Richmond, they will be struck down.

Child Custody Pre-Determinations

You cannot use a prenup to decide who gets custody of future children or dictate parenting time. Virginia courts operate strictly under the 'best interests of the child' standard. Any pre-arranged agreement regarding child custody signed years before a divorce is entirely unenforceable because it ignores the child's actual needs at the time of the split.

Child Support Waivers

Child support belongs to the child, not the parent. You cannot legally agree to waive child support obligations or set an artificially low cap on support payments. The state legislature heavily regulates child support calculations, and judges will ignore any contract that attempts to bypass these guidelines.

Clauses Promoting Illegal Acts or Divorce

Virginia will not enforce clauses that encourage illegal activities or inherently incentivize divorce. For example, offering a spouse a $500,000 bonus specifically if they file for divorce within two years may be viewed as violating public policy by improperly encouraging the dissolution of the marriage.

Severability: How Virginia Courts Handle Invalid Clauses

What happens if your DIY online template accidentally includes a banned child custody clause? Fortunately, Virginia courts generally use the doctrine of 'severability.' As demonstrated in various appellate decisions like Schuiling v. Harris, 286 Va. 187 (VA Supreme Court 2013), if one specific clause is deemed illegal or unenforceable, the judge can sever (cut out) that bad clause while leaving the rest of the financial agreement completely intact. However, relying on a judge to fix your contract is a risky and expensive legal gamble.

Frequently Asked Questions (FAQ)