Agreements

§ 6-1.   Generally
(A)  Pre-Nuptial
(B)  Post-Nuptial
§ 6-2.   Ambiguity/Construction
§ 6-3.   Attorney's Fees
§ 6-4.   Child Support
§ 6-5.   Child Custody/Visitation
§ 6-6.   Consent Orders
§ 6-7.   Incorporation, Affirmation, Merger
§ 6-8.   Modification
§ 6-9.   Property Distribution
§ 6-10. Spousal Support
§ 6-11. Validity
(A) Generally
(B) Apparent/Authority
(C) Coercion/Duress
(D) Competency
(E) Constructive Fraud/Fraud
(F) Unconscionability
(G) Disclosure
(H) Oral Agreements
(I) Contrary to Public Policy
§ 6-12. Arbitration
§ 6-13. Rescission/Repudiation
§ 6-14. Statute of Frauds
§ 6-15. Specific Performance
§ 6-16. Mistake/Reformation

Chapter 6

AGREEMENTS

    § 6-1    Generally

    (A)  Pre-nuptial

2013--Tsoucalas v. Tsoucalas, Va. Ct. of Appels, Unpublished, No. 1560-12-1.
In a prenuptial agreement, the parties agreed to share household expenses equally. Upon divorce, the Husband sought reimbursement for household expenses he paid above fifty percent. The Court of Appeals held that the trial court lacked jurisdiction to order the Wife to reimburse the Husband for said expenses.
The prenuptial agreement of the parties specifically stated that each party would retain his or her own separate property upon divorce. Given that any reimbursement by the Wife would come from her separate property, the prenuptial agreement prohibited such an order.

2012---Parsons v. Parsons , Va. Ct. of Appeals, Unpublished, No. 1051-11-4
Antenuptial agreements, like marital property settlements, are contracts subject to the rules of construction applicable to contracts generally, including the application of the plain meaning of unambiguous contractual terms. (Citing Pysell v. Keck, 263 Va. 457 (2002)).

2006---Black v. Powers, 48 Va. App. 113
Prenuptial agreement signed in Virgin Islands was governed by the law of that jurisdiction. Because the parties did not clearly intend for Virginia law to govern the validity of the agreement and because neither party argues that the substantive law of the Virgin Islands regarding prenuptial agreements is contrary to Virginia's established public policies, the trial court erred in applying Virginia law to resolve the validity of the agreement. Because the trial court correctly determined that under the law of the Virgin Islands the agreement was valid and enforceable, the error was harmless.

2005---Dowling v. Rowan, 270 Va. 510
In a dispute over probate of a will, the trial court correctly concluded that a premarital agreement constituted a waiver of the surviving spouse's claims against separate property specified under the agreement, such that his claims for a statutory elective share of the decedent's estate, family allowance, and exempt property, could not be satisfied using any such property.

2004---Smith v. Smith. 43 Va. App. 279
Although the law presumes property acquired during a marriage to be marital property, the parties may defeat that presumption by agreement. Contracts seeking to do this before marriage, should be interpreted and enforced no differently than any other type of contract.

2002---Pysell v. Keck, 263 Va. 457
The trial court erred in finding that the parties’ prenuptial agreement precluded Wife from asserting rights against Husband’s estate that would normally accrue to a surviving spouse by operation of law. Although the prenuptial agreement provided that the parties intended to continue to hold as their separate properties any property which they individually owned at the time of the marriage or thereafter acquired, and further provided that the parties’ “respective rights to each other’s property accruing by operation of law shall be solely determined and fixed by this agreement,” those provisions dealt with the property of parties who were living persons at the time. The agreement did not refer to either party’s rights in the property of the estate of the other. Consequently, the trial court’s construction of the agreement effectively made an unwarranted addition to the plain meaning of the language of the agreement, as well as an unjustified expansion of any explicit waiver expressed therein.

2002---Lehman v. Lehman, 38 Va. App. 598
Va. Code §20-149 and Va. Code §20-155 eliminate the need for consideration in marital agreements.

1995--- McIntyre v. McIntyre, Va. Ct. of Appeals, Unpublished, No. 0167-95-4
Where wife signed a pre-marital agreement prepared by husband, with no knowledge of her future husband's assets, no independent legal advice, no knowledge of her rights, and with no provision in the agreement to her benefit, the agreement was void as being against public policy.

1994---Carpenter v. Carpenter, 19 Va. App. 147
For pre-marital agreements entered into prior to July 1, 1986, the effective date of the Premarital Agreement Act, validity is tested pursuant to the principals enunciated in Batleman v. Rubin, 199 Va. 156 (1957), which require that, for a prenuptial agreement to be valid, there must be a fair and reasonable provision therein for the wife, or, in the absence of such provision, a full and frank disclosure to her of the husband's worth before she signs the agreement, and she must sign freely and voluntarily, on competent independent advice, with full knowledge of her rights.

The trial court did not err in finding the parties' premarital agreement (entered into prior to the enactment of the Premarital Agreement Act) to be invalid, where the agreement contained a forfeiture by wife of all of her marital claims, did not provide a complete or accurate disclosure of husband's assets and/or net worth, and where wife executed the agreement without the advice of counsel twenty minutes after first being presented with it.

1957---Batleman v. Rubin, 199 Va. 156
The trial court correctly found a prenuptial agreement invalid and unenforceable, where the agreement provided for Wife to receive a sum payable on Husband’s death of less than one third of the value of her rights, if married, in the property owned by him on the day the agreement was signed. Parties who are engaged to be married occupy a confidential relationship to one another, and in executing a prenuptial agreement they are under high obligation to make a full and frank disclosure of all facts and circumstances involving the property rights to be affected by the agreement. Here, there was no evidence in the record showing that Husband made any disclosure to Wife regarding the value of his property, the disproportionately small allocation of property to Wife in the agreement raised a presumption that Husband did not make a full and frank disclosure to Wife of the fair value of the property then owned by him.

    (B)  Post-nuptial

2009---Hopkinson v. Hopkinson, Va. Ct. of Appeals, Unpublished, No. 0013-09-4
Trial court erred by including in the final order of divorce a provision "superseding" certain language regarding life insurance in the parties' settlement agreement. The agreement required husband to maintain life insurance for wife until wife remarried or accepted insurance through her own employer, and provided that if insurance subsequently became unavailable through husband's employer, the parties would renegotiate that portion of the agreement. Despite the fact that both parties conceded that the divorce itself would render insurance unavailable through husband's employer, the trial court was not permitted to re-write the language of the agreement such that husband's obligation terminated when either coverage through his employer or COBRA coverage became unavailable. The agreement provided for termination only upon wife's remarriage or acquisition of insurance through her own employer. Where parties have entered into a property settlement agreement, Va. Code §20-109(c) prohibits the trial court from entering a decree contrary to that agreement.

2002---Shenk v. Shenk, 39 Va. App. 161
Marital agreements are not required to be made specifically in contemplation of divorce.  p. 171.

Premarital and marital agreements are enforceable without consideration.  p. 177.

2002---Lehman v. Lehman, 38 Va. App. 598 
Va. Code §20-149  and Va. Code §20-155  eliminate the need for consideration in marital agreements.

2002---Flanary v. Milton, 263 Va. 20
An oral agreement reached by the parties and recited into the record by the parties' attorneys during a deposition is not valid, as it is not in writing and signed by the parties as required by Va. Code §20· 155.

2000---Campbell v. Campbell, 32 Va. App. 351
Marital property settlements entered into by competent parties upon valid consideration for lawful purposes are favored in the law.

1980---Cooley v. Cooley, 220 Va. 749
Marital Property Settlement Agreements entered into by competent parties upon valid consideration for lawful purposes are favored in the law and such will be enforced unless their illegality is clear and certain.


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