Can a Prenup Be Modified in Virginia?

November 1, 2023
David Roop
Divorce
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Countless Virginia couples have secured their future through prenuptial agreements. However, as time passes and situations change, you may wonder if you can modify those once iron-clad documents to suit your current reality.

What Makes a Virginia Prenup Valid?

According to the Code of Virginia, a prenup or “premarital agreement” is any written agreement made between two spouses “in contemplation of marriage,” meaning that they wrote and signed the agreement with the intention of marrying each other. The agreement must be in writing. Oral agreements are invalid under Virginia law.

While some states require spouses to give something of value to each other as part of a prenup, the Commonwealth of Virginia does not. However, prenups can only cover specific topics under state law. Those topics include:

Property Rights and Responsibilities: Understanding the rights and obligations of both parties regarding their property, no matter when or where the couple acquired it.
Management of Property: Guidelines on how property can be bought, sold, used, transferred, or otherwise managed.
What Happens to Property: Clarifying how property will be divided or handled if the couple separates, divorces, one party dies, or any other significant event occurs.
Spousal Support: Defining if and how much spousal support will be provided in the event of divorce.
Future Financial Planning: Directions for creating wills, trusts, or other financial arrangements to uphold the prenup’s terms.
Life Insurance Policies: Determining ownership rights and what happens to the death benefit from such policies.
Choice of Law: Deciding which state’s laws to use to interpret and enforce the agreement.
Additional Agreements: Any other matters related to personal rights and obligations, as long as they don’t break public policy or lead to criminal penalties.

Proving a Virginia Prenup Is Invalid

Under Virginia law, a spouse can invalidate a prenuptial agreement if they can prove either of the following:

They did not sign the agreement voluntarily.
The agreement was unconscionable when both spouses signed it, meaning it is deeply unfair toward one spouse. To meet this condition, the spouse seeking to invalidate the agreement must show that the other spouse did not fully disclose their financial situation and that they did not waive their right to a full disclosure of the other spouse’s finances.

Modifying a Prenuptial Agreement in Virginia

According to Virginia law, the only way to modify a prenup is for both parties to sign a written agreement outlining the changes they wish to make. Alternatively, couples can revoke a prenup if they both sign a written declaration. Again, note that the revised agreement must be in writing to be valid. Furthermore, the revised agreement will not hold if either spouse signed it under duress.

Reasons to Modify a Virginia Prenup

There are many reasons why couples in Virginia might want to modify a prenup, but some of the most common include:

Change in Financial Circumstances: As time goes by, the financial status of one or both parties can evolve significantly. To reflect their current financial landscape, couples may choose to modify their prenup.
Starting a Family: When a couple decides to have children, their priorities often shift. They might want to adjust their prenup to ensure security for their kids or to reflect new decisions about the roles each partner will play in child-rearing and financial support.
Purchase of Joint Assets: After marriage, couples may acquire substantial joint properties, such as a home. A couple might modify the existing agreement if these assets weren’t included in the original prenup.

Considering a prenup as a living document rather than a static one can allow couples to ensure it always aligns with their current situation and future goals. If you live in Virginia and need to modify a prenup, a knowledgeable firm like Roop Xanttopoulos Babounakis & Klam PLLC can guide you through the process. Call (703) 442-0040 now for a consultation.