Country roads…take me home… to a place…with PRENUPS! Okay, too corny? Sorry! We just love prenups. A premarital agreement is simply another word for a prenup (or “prenuptial agreement”). It’s the term that West Virginia tends to use the most when referring to a prenup. A premarital agreement is a contract between two future spouses that lays out expectations during the marriage, in the event of a divorce, and sometimes in the event of death. It can be an excellent tool for a variety of different reasons, including but not limited to peace of mind in the unfortunate event of a divorce and securing your financial future. The good news? Getting a prenup in the beautiful state of West Virginia is a walk down a country road. West Virginia recently enacted a set of statutes that made getting a prenup in the state clearer than ever. Let’s explore the nitty-gritty of premarital agreements in West Virginia.

Who should get a premarital agreement in West Virginia?

When it comes to matters of love and commitment, thinking about a premarital agreement or prenup may not be the first on your wedding to-do list (but it should be, and we’ll tell you why). Prenups aren't just for the wealthy or those who anticipate divorce; they can be a valuable tool for a variety of individuals. Let's explore who might want a prenup in West Virginia (or any state, for that matter).

1. Business Owners: If you own a business in West Virginia, a prenuptial agreement can safeguard your company. Without a prenup, you could lose a portion of the value of the business in a divorce.
2. Professionals with High Earning Potential: If you have invested significant time and resources into your education and career, such as doctors, lawyers, or engineers, then you may want to consider a prenup. This agreement can ensure that the future income and assets earned through your profession remain protected.
3. Those with Significant Existing Assets: If you have substantial assets prior to entering the marriage like real estate, investments, or bank accounts, a prenup can help you maintain control and prevent disputes over these assets in the event of a divorce.
4. Individuals with Debts (or Individuals with Spouses who have Debts): On the flip side, if you or your future spouse has any debts, a premarital agreement can specify how these debts will be handled in case of divorce. This can help protect one spouse from shouldering the other's financial burdens.
5. Parents: If you have children from a previous relationship, a prenup can ensure their future inheritances are protected if the marriage ends.
6. Those Wanting to Avoid Lengthy Legal Battles: Divorces can be emotionally and financially draining, as you probably are well aware if you’ve known anyone who has gotten divorced. A well-crafted premarital agreement can simplify the divorce process by providing clear guidelines for asset division and other key issues. This can save both spouses time, money, and stress.

In West Virginia, as in many states, premarital agreements must be drafted carefully and meet specific legal requirements to be enforceable. Let’s dive into what the legalities of a prenup in West Virginia look like.

The Uniform Premarital Agreement Act (UPAA) and West Virginia law explained

The Uniform Premarital Agreement Act (UPAA) aims to enhance the enforceability of premarital agreements across states. Requiring formalities like putting a prenup in writing and making sure both parties sign are just a few of the standards set forth by the UPAA. In plain English, the UPAA sets a standard for states to follow when creating their own state laws surrounding prenups. Why? To make the laws surrounding prenups more “uniform” across all states. Following the UPAA, the Uniform Premarital and Marital Agreement Act (UPMAA) was developed to replace it and impose more stringent criteria for a prenuptial agreement. As of 2023, West Virginia has officially adopted their own version of the UPAA, adding several additions to the Act, including a requirement to acknowledge that both parties had an opportunity to consult with separate legal counsel. (W. Va. Code § 48-1A-201).

Formalities of a West Virginia prenup

Every state has some requirements that are necessary for a prenup to be considered valid and enforceable. For example, some states may require a prenup to be witnessed, and others don’t. The formalities that a West Virginia prenup mandates include putting the prenup in writing, making sure both parties sign it, and including an acknowledgment regarding the opportunity to consult with independent counsel. (See W. Va. Code § 48-1A-201).

When is a prenup unenforceable in West Virginia?

If any of the following are true, then a court may deem all or part of your West Virginian prenup unenforceable:

• Either spouse was under 18 when the prenup was signed
• The prenup was signed involuntarily (think: duress, coercion, etc.)
• The prenup was unconscionable when signed (egregiously unfair)
• Financial disclosure was not properly given (there was not adequate disclosure of all assets, income, and debts)
• Neither party had an opportunity to consult with legal counsel or was it documented in the agreement
• The same attorney represented both spouses
• The prenup included provisions that were against West Virginia law
• (See W. Va. Code § 48-1A-601)

These requirements are put into place to ensure a fair agreement between spouses while still allowing them the freedom to contract with one another.

What can you include in your West Virginia prenup?

It's important to note that each state has the authority to impose limitations on what goes into a premarital agreement (a.k.a., prenup). In West Virginia, a premarital agreement may include the following subjects:

1. Division of Assets in Case of Divorce or Death: Outlining how property should be divided in the event of divorce or a spouse's death.
2. Ownership of Debts: Specifying who owns what debt. (You definitely don’t want to end up with your partner’s debt, right?!).
3. Disposition of Property upon Death: Determining the fate of property and debts if one spouse passes away.
4. Alimony: Addressing matters related to alimony, such as eliminating alimony altogether or limiting it in some way.
5. Waiver of Inheritance Rights: Deciding whether either spouse will relinquish their right to inherit from the other's estate if the other spouse dies.
6. Any Other Provisions Not Contrary to West Virginia Law: Pretty much anything not against public policy or criminal laws goes!
7. Not Permitted: Just remember, no clauses about child support, child custody, restriction on domestic violence victims' remedies, any term that tries to change the legal grounds for separation or divorce, or any term that punishes a spouse for initiating legal proceedings for separation or divorce.

See W. Va. Code § 48-1A-301 for the full list of topics you can include in your agreement.

Prenup case law in West Virginia

Let's dive into some court decisions relevant to the enforceability of prenuptial agreements in West Virginia!

Can one prenup lawyer represent both husband and wife in West Virginia?

In 1993, David and Diane got married, signing a prenuptial agreement that declared David's Pizza Place business as separate property. The agreement also included a certification-of-attorney clause, confirming that David’s attorney, Skeen, had provided legal counsel to both parties regarding their rights. Fast forward to 2005, they divorced, and the prenup was at the heart of the dispute. The critical question was whether the prenup was valid. Diane argued that it was not because she didn’t have the opportunity to seek legal counsel. During the divorce proceedings, Skeen (the lawyer) testified that he had thoroughly informed Diane about her legal rights and the potential outcomes of entering into the agreement. However, Skeen's statements unintentionally led her to believe that he was acting as her legal representative, thus giving her the impression that she didn't require independent legal counsel. Because of this improper dual representation by Skeen, which hindered Diane from seeking separate legal advice, the prenuptial agreement in this case is deemed invalid. In this tale of love and law, we’re reminded that lawyers cannot represent two people in the same prenup. (Ware v. Ware)

An important case on prenup laws in West Virginia

This case is about Elizabeth Elana Gant and Frank Larry Gant, who tied the knot in 1979 in Nevada. They weren't youngsters; both had been married before. Larry, who was a doctor, struggled with some serious mental health issues, and that led them to move to Charleston, West Virginia, so he could finish his psychiatry residency. Their marriage was far from smooth sailing, filled with unpredictable behavior, violent arguments, strange intimate moments, and financial disagreements. One day before getting married, they signed a prenuptial agreement where Elana agreed not to ask for alimony if they ever divorced. Elana did not have legal representation. Later on, Elana decided to file for divorce in 1982. The legal proceedings that followed dealt with the validity of the prenuptial agreement and a few other topics. Ultimately, the court confirmed that the prenup, which both parties signed ONE DAY before their marriage and where Elana waived her right to alimony in case of divorce without legal representation, was valid and enforceable. It noted that both were mature individuals with prior marriages, fully aware of the agreement's terms and willing participants. The takeaway? Just because a prenup was executed one day before the marriage and there was no legal representation does not mean it will be automatically considered invalid. Here, Elana signed the prenup the day before the wedding, waiving her rights to alimony, and she didn’t have a lawyer. The court still said that was a valid and enforceable prenup! (Gant v. Gant)

The bottom line on West Virginia prenups

Well, there you have it, folks. Everything you need to know about getting a prenup in West Virginia. Thanks to the recent 2023 enactment of the West Virginia Uniform Premarital Agreement Act, the requirements for a prenup in the state are clear--put it in writing, sign it, make sure each party has opportunity to consult with counsel and document that in the agreement, make sure it's reasonable, voluntary, and financial disclosure is provided. And don't forget to only include clauses that are enforceable---avoiding all things against public policy like child custody or child support. Easy peasy! Happy prenup planning.