A premarital agreement is a contract between prospective spouses that determines their financial rights and obligations when the marriage ends at death or divorce. Such an agreement can be useful for anyone considering marriage who wants to decide in advance about the ownership and control of assets, provide for children and other family members, or have the right to continue plans for charitable giving. A domestic partnership agreement may be appropriate for a couple in, or planning for, a long-term live-in relationship but who may not marry. It can address the same kinds of property rights and obligations as a premarital agreement.
A premarital agreement can be appropriate in a number of situations. For example, it can be useful for a person contemplating a second marriage who has significant assets he or she wishes to preserve, who wants to have the right to reserve assets for children from a prior marriage, or who is the owner of a business. Even younger couples entering into a first marriage may consider a premarital agreement, particularly when a prospective spouse expects an inheritance or already has substantial premarital assets to which he or she wants to retain exclusive rights.
We can tailor a premarital agreement to the needs, values and wishes of our client. Our goal is always to protect the financial interests of our client, but to do so in a way that fosters respect for the couple’s personal relationship.
Parties to a premarital agreement are free to make decisions during the marriage that alter their financial circumstances so long as they meet their contractual obligations. Post-execution actions can strengthen the validity of the agreement, result in a claim that the agreement has been revoked, or leave the agreement intact but change the economic outcome.
Conduct that Strengthens Validity
The low standards for validity create opportunity for a claim of duress, especially when a proposed agreement is presented close to the wedding or a weaker party does not get legal advice. (These claims rarely succeed.) Contract law acknowledges that a party may ratify a contract, thus waiving a duress claim. Acceptance of the benefits of a contract is generally considered ratification. When the agreement requires… MORE >
Since early 2020, fewer face-to-face transactions have been possible because of mandatory social distancing. These restrictions changed the way lawyers and clients handled contracts and other business and personal transactions. The remote work environment reduced ink-to-paper signatures and increased the use of electronic signatures for contracts. Parties to a contract use the click of a button, sign on an electronic notepad, add their signature to the end of an email, or upload a picture of their signature to software. This development has led to questions about authenticity, validity, and enforcement of contracts.
Although an oral contract can be valid, with some exceptions, most contracting parties prefer a written agreement with signatures. In the family law area, a premarital agreement must be in writing and signed… MORE >
A premarital agreement addresses a couple’s rights and obligations to one another when their marriage ends by divorce or death. A recent Virginia Circuit Court case, In re: Algabi v. Dagvadorj, et al., highlights the importance of ensuring that a decedent’s estate plan is consistent with the terms of his or her premarital agreement; or, in the case where a decedent intends to depart from the terms of his or her premarital agreement, the importance of making this intent clear in the testamentary document. In Algabi v. Dagvadorj, the parties executed a premarital agreement in which they each waived all claims to the other’s estate at death. After the parties were married, husband executed a will under which he arguably intended to leave a share… MORE >
With boomers living longer and marrying multiple times, the argument for premarital agreements for these couples is compelling. A premarital agreement defines the property rights of the parties when the marriage ends at death or divorce. Not all marriages between mature people will last until death.
Property Rights at Dissolution. A premarital agreement will typically provide for each party to retain exclusive rights to existing assets and assets acquired during the marriage by gift or inheritance. Parties must decide whether they want a title-controls type of agreement, so that each retains exclusive rights to all property he or she owns, or whether they want to share the fruits of their labor. When both parties have substantial assets and both are still working, with the ability… MORE >
A marital agreement can take the form of a premarital agreement, a postmarital agreement, or a separation agreement, i.e., an agreement that settles property rights (and other issues) between parties who intend to divorce. A marital agreement may provide for the disposition of assets at death; it may require one or both parties to provide for the other or a child at death after divorce; or it may waive rights at death. When the terms of a marital agreement and a beneficiary designation conflict with each other, the law will either validate or annul the designation, depending on the jurisdiction, the type of asset, and the language of the marital agreement.
The District of Columbia, Virginia, and Maryland all have laws that revoke at divorce either the entire will or the portions benefitting a… MORE >
The Tax Cuts and Jobs Act has eliminated the tax treatment of alimony that has been in place for more than 75 years. Under the old law, alimony is deductible from the income of the payor and includible in the income of the recipient, provided the parties comply with the specific requirements of the Internal Revenue Code (I.R.C.). Effective January 1, 2019, under the Tax Cuts and Jobs Act, parties will no longer have the option to enter into an agreement for taxable alimony nor will court-ordered alimony be deductible from the payor’s income and includible in the recipient’s income. Some alimony obligations created prior to January 1, 2019, may receive alimony tax treatment under the old law; others may not.
An existing premarital agreement… MORE >
A premarital agreement is a contract between persons intending to marry. It determines spousal rights when the marriage ends by death or dissolution. All states enforce properly made premarital agreements. However, laws governing validity vary among the states. What if a couple signs a premarital agreement in Virginia and later moves to Maryland? Will a Maryland court enforce the agreement even though Maryland law of validity imposes a higher standard than Virginia law?
Contract law permits the premarital agreement to choose the law that will govern a dispute about validity of the agreement or enforceability of a specific provision even when the dispute must be resolved in another state’s courts. Can the couple rest easy, knowing the law chosen in the contract—Virginia law in the… MORE >
Jan White and Linda Ravdin were named yet again on Washingtonian’s list of Washington’s Top Divorce Lawyers. Congratulations, Linda and Jan!
“My daughter is getting married. Does she need a premarital agreement?”
Estate planning attorneys hear this question more and more frequently – generally from clients concerned about the assets they plan to leave their children. Numerous wealth transfer predictions estimate that trillions of dollars will pass over the next decade from a generation that earned the money to their children who did not earn it. Parents (and grandparents) may want to assure that the inheritance the child receives, whether cash, real estate, a stock portfolio or an interest in a family business, will be stewarded carefully. Parents usually hope that the inherited assets will ultimately pass at the child’s death to the child’s children or grandchildren rather than to a child’s surviving spouse, however… MORE >
Premarital agreements get a bad rap for being anti-romantic, anti-relationship and getting a marriage off to a bad start. If they are done right, nothing could be further from the truth.
The Collaborative Process has gained traction in the last decade as a respectful way for couples to settle their divorce issues outside of court. Less attention has been given to how couples about to embark on marriage can use the Collaborative Process to develop a premarital agreement. Clients can benefit greatly if attorneys take note of how well the Collaborative Process fits this situation. In the Collaborative Process, the couple make their own decisions, staying together in the same room to discuss options to resolve their issues. They are guided in their discussions by… MORE >