5.2 Introductory Clauses

• Library: Negotiating and Drafting Marital Agreements (Virginia CLE) (2023 Ed.)

5.2 INTRODUCTORY CLAUSES

5.201 Preamble and Recitals.

The preamble and recitals section of an agreement contains basic information, including names, dates, and places pertaining to the parties, their marriage, and any children. ⁸⁰³ These are often referred to as "whereas" clauses by practitioners.

The Virginia Court of Appeals has decided cases in which the preamble was used to discern the intent of the parties in the construction of a separation agreement. In Hale v. Hale, ⁸⁰⁴ the court considered whether a specific paragraph in the agreement concerning the distribution of the husband's pension benefit included both of his pension plans. Although the language of the paragraph directly related to only one of the two plans, the court cited the preamble, which stated, "[t]he parties desire to confirm their separation and make arrangements in connection therewith, including settlement of their property rights. . . ." The court interpreted this and other provisions to mean that the parties intended both plans to be distributed to the wife. In Brumskill v. Brumskill, ⁸⁰⁵ the court construed a separation agreement that the husband argued constituted a waiver of spousal support. The body of the agreement was somewhat unclear concerning the intent relative to the continuation of spousal support, but the court looked to the preamble, which included a provision that seemed to clarify that a prior pendente lite order was to remain in full force and effect. Likewise, in Moy v. Moy, ⁸⁰⁶ the Court of Appeals looked to the preamble to defeat the husband's argument that no spousal support was due to the wife because the agreement did not recite a start date for support. The preamble stated that the agreement became effective "on the day and date first written above." Therefore, the court ruled that spousal support became effective and payable on that date as well.

The Virginia Supreme Court cited the preamble in a premarital agreement, which set forth one of the purposes of the agreement as "to settle the rights and obligations of each of them . . . upon the death of either or both of them," to find that the husband waived his survivorship rights to the property and classes of property that the agreement expressly covered. ⁸⁰⁷ Likewise, the court declined to do so in the case of a premarital agreement in which "nowhere . . . do we find a reference to either party's rights in the property of the estate of the other." ⁸⁰⁸

5.202 "Personal Lives" or "Freedom to Live" Provision. ⁸⁰⁹

A. Psychological Significance.

A "personal lives" provision (often called a "freedom to live" clause) probably has more psychological than legal

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