11.10 Marital Agreements

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

11.10 MARITAL AGREEMENTS

11.1001 Types of Marital Contracts. ¹⁵³ The following agreements are governed by the Premarital Agreement Act. ¹⁵⁴

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A. Premarital Agreements. Premarital agreements are used by parties to contractually limit or enhance the rights acquired by marriage. They typically concern property owned before the marriage, property acquired after the marriage, and support. ¹⁵⁵

B. Postmarital Agreements. Postmarital agreements are made after the parties are married, but not necessarily in contemplation of divorce. Spouses can contractually agree about issues that would arise in the event of one of their deaths, such as support and property rights, wills and trusts, and insurance benefits. They can, of course, also contract about these same issues in the event of separation or divorce.

C. Separation Agreements. Separation agreements (or property settlement agreements) allow spouses to agree on the division of property, pension, and retirement plans. They can also agree on spousal and child support, child custody, and insurance issues. ¹⁵⁶

11.1002 Requirements for a Valid Marital Contract. ¹⁵⁷

A. Premarital Agreements. Premarital agreements must be in writing and signed by the parties. ¹⁵⁸

For premarital contracts, it is recommended that the contract be signed well in advance of the marriage ceremony.

B. Postmarital Agreements and Separation Agreements.

1. Must Be in Writing and Signed. Agreements entered into between married persons must be in writing and signed by the parties unless: (i) the terms of the agreement are contained in a court order endorsed by counsel or the parties, or (ii) the terms of the agreement are recorded and transcribed by a court reporter and affirmed by the parties on the record personally. ¹⁵⁹

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However, in Brock v. Brock, ¹⁶⁰ the Court of Appeals affirmed the trial court's enforcement of an oral agreement. In Brock, the wife signed a document titled "Spouse's Consent to Withdrawal from Account," which permitted the husband to withdraw funds from his 401(k). When the consent form was signed, the parties orally agreed to equally divide the funds withdrawn from the 401(k). The husband placed his one-half of the funds in a Vanguard IRA. The Court of Appeals affirmed the trial court's finding that the Vanguard IRA was the husband's separate property. The court explained that there was "no necessity for a written agreement signed by both parties because years prior to the equitable distribution hearing, the parties fulfilled the terms of their agreement. The execution itself is evidence of the agreement." ¹⁶¹

2. Reconciliation. A reconciliation of the parties after the signing of a separation or property settlement agreement abrogates the agreement unless otherwise expressly set forth in the agreement. ¹⁶²

C. Requirements Applicable to All Marital Contracts. The agreement must be executed voluntarily, and it cannot be unconscionable. ¹⁶³ There is no requirement for a notary. However, it is recommended.

An agreement is not enforceable if the person against whom enforcement is sought proves that the agreement was unconscionable when it was executed and,

before execution of the agreement, that person (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. ¹⁶⁴

Independent legal advice is not required. However, it is recommended because it is a factor in determining unconscionability.

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11.1003 Subject Matter.

A. Child Custody and Support. Parents may contract regarding child custody and support. However, there are three limitations.

1.	The court must review the agreement to make sure it is consistent with the children's best interests; 165
2.	The parents cannot, by agreement, prevent the court from exercising its power to change, modify, or enforce any decree concerning the custody and support of children; 166 and
3.	Parties cannot terminate, by contract, a parent's duty to support their child. 167

In Azandeh v. Azhandeh, ¹⁶⁸ the Court of Appeals affirmed the trial court's decision to award child support and declined to award attorney fees on appeal. The wife and the husband agreed that the wife would not seek child support for the first 10 years from the date of the effect of the marriage, and the husband was going to forgo his share of the marital assets in consideration and transfer his...