Lead Opinion
Aрpellant Benita Frances Black (“wife”) appeals a ruling from the trial court upholding the validity of her prenuptial agreement with appellee William V. Powers, Jr. (“husband”). Wife contends that the trial court erred in holding that Virginia law governs the validity of the agreement, reasoning that the trial court should have applied the law of the United States Virgin Islands, the jurisdiction where the parties signed the agreement, instead. Wife also argues that the trial court erroneously held that, even under the law of the Virgin Islands, the prenuptial agreement is valid and enforceable. Finally, -wife argues, in the alternative, that if the trial court correctly held that Virginia law determines the validity of the prenuptial agreement, the court erred in concluding that the agreement is valid and enforceable under Virginia law. For the reasons that follow, we hold that the trial court erroneously held that Virginia law governs the validity of the prenuptial agreement. However, because, according to the law of the Virgin Islands, the prenuptial agreement is valid and enforceable, we further hold that this error is harmless. Acсordingly, we affirm the judgment below. Also, we deny husband’s request for an award of the attorneys’ fees associated with this appeal.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to husband, the party prevailing below. Congdon v. Congdon,
Husband and wife began dating in 1979. At the time, wife was employed as a secretary at a law firm, and husband, a lawyer, was a solo practitioner. Both parties were Virginia residents. In late November of 1982, husband and wife decided to buy a house together. Although the parties closed on the house in December of 1982, wife informed husband that she would not move into the house with him unless he married her first. Husband, however, told wife repeatedly that he would never marry her unless
Several months later, the parties decided to marry, and they selected the island of St. Croix in the United States Virgin Islands as the location of the wedding ceremоny. At some point during the spring of 1983, husband gave wife a copy of the proposed prenuptial agreement.
On July 10, 1983, the parties flew to St. Croix, and they arranged to be married on July 13, 1983. At the time, neither party had signed the prenuptial agreement. On July 12—the day before the wedding—husband gave wife another copy of the agreement. After a cursory review of the terms of the agreement, wife signed the document.
The prenuptial agreement provides, in pertinent part, as follows:
Whereas, a marriage is intended to be solemnized between the parties, and in view of the fact that after their marriage, in the absence of any agreement to the contrary, their legal relations and powers with reference to their property may, by reason of some change in their domicile or other than those which they desire to have applied to their relationshiр, power and capacities, and in anticipation thereof they desire to fix and determine the rights and claim [sic] that will accrue to each of them in the property and the estate of the other by reason of the marriage, and to accept the provisions of this agreement in full discharge and satisfaction of such rights.
Whereas, each of the parties hereto has given a full and frank disclosure to the other the full amount of all property owned by each of the parties and each acknowledges that they are fully acquainted with the business and resources of each and each understands that the other is a person of possible substantial wealth. And each has answered all the questions each has about their income and assets and each understands that by entering into this agreement they may receive as the widow of each other substantially less than the amount they would otherwise be entitled to receive if they died intestate or if they elected to take against their Last Will and Testament pursuant to statute and each has carefully weighed all thе facts and circumstances, and desires to marry each other regardless of any financial arrangements made for their benefits and each is entering into this agreement freely and voluntarily, on competent independent legal advice and with full knowledge of their rights.
Now, Therefore, In consideration of the promises and of the marriage and in further consideration of the mutual promises and undertakings hereinafter set forth the parties agree:
1. Each party hereby agrees, covenants and declares that ... in view and consideration of the proposed marriage, that so far as it is legally possible by their private act and agreement, all the property belonging to either of them at the commencement of the marriage or acquired by or coming to either of them during the marriage, shall be held and enjoyed by him or her, and be subject to his or her disposition as his or her separate property in the manner as if the marriage had never been consummated.....
2. The parties hereto expressly further agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title under the laws of any state because of such survivorship in or to the property, real, personal or mixed, or life insurance, of which the deceased party die seized or possessed, and such survivor hereby relinquishes to the heirs, devisees, administrators, executors and assigns of the deceased party any and all of his or her claim, distributive share, interest, estate or title that he or she would be entitled to as the surviving husband or wife respectfully....
This provision is intended to and shall serve as a waiver and release of each parties [sic] rights of election in accordance with the requirement of Virginia Code 64.1-13 (1950 as amended), and any law amendatory thereof or supplemental or similar thereto.
3. Each party hereby waives, releases and relinquishes any and all claim and rights of every kind, nature or description that he or she may acquire by reason of the marriage in the other’s property or estate under the present or future laws of the state of Virginia or аny other jurisdiction.
4. Nothing contained in this agreement shall be deemed to constitute a waiver by either party of any bequest that the other party may choose to make to him or her by will or codicil. However, the parties acknowledge that no promises of any kind have been made by either of them to the other with respect to any such bequest.
5. This agreement contains the entire understanding of the parties. There are no representations, warranties or promises other than those expressly set forth herein.
(Emphases added). After the wedding ceremony, the parties returned to Virginia, where they continued to reside throughout the duration of their marriage.
In June of 1994, husband and wife separated. On August 22, 2001, wife filed a bill of complaint, seeking a divorce a vinculo matrimonii “on the ground of the continuous physical separation of the parties for a period of more than twelve (12) months without any cohabitation whatsoever.” Wife further requested equitable distribution of the marital estate “under § 20-107.3 of the Code of Virginia ... and [ ] such other and further relief as the nature of this case may require or as tо equity shall seem meet and appropriate.”
On October 24, 2001, husband filed an answer and cross bill, asserting, inter alia, that “the parties entered into a premarital agreement as defined in Virginia Code 20-148 and recognized under section 20-149 and 20-154.” Husband further alleged that “said agreement as a matter of law defines their property rights and bars the equitable side of the court from deciding those rights under section 20-107.3.”
On January 14, 2002, the trial court conducted a hearing to resolve the validity of the prenuptial agreement. During husband’s case-in-chief, both parties testified that the signatures on the prenuptial agreement were valid. At the conclusion of husband’s evidence, wife moved to strike the evidence, arguing that there was no evidence that the parties made a “full and frank disclosure” of their financial situation, that there was no evidence that wife signed the agreement “freely and voluntarily,” and that there was no evidence that wife “entered into this with competent, independent, legal advice.” The trial court overruled the motion to strike.
During rebuttal, wife testified that she stopped working as a legal sеcretary in 1979, two and a half years before the parties’ marriage. Wife also stated that, although she knew what a prenuptial agreement was, she never assisted in the preparation of one during the course of her seven-month employment as a legal secretary. As to the specifics of her prenuptial agreement with husband, wife testified that neither party disclosed their financial assets prior to the signing of the agreement, and she further stated that she had “less than an hour” to review the document. According to wife, husband did not explain the agreement to her, she did not “take [the] document to anybody” before signing it, and husband did not “advise [her] that [she] should have someone else look at [the] document.” Wife
Husband, however, testified that wife “knew what [his] financial situation was” at the time of the marriage because he discussed his financial situation with her during the loan application process in November of 1982. Specifically, husband stated that both parties orally discussed their assets with the loan application officer, “and we both had to tell her what we were making, and we had to tell her what debts we had.” Husband admitted, however, that he could not recall ever giving wife “her own copy” of his tax returns or financial statements. Husband also testified that, at the time the prenuptial agreement was signed, he did not know whether wife had consulted an attorney about the document. Husband said, however, that he gave wife a copy of the agreement “months” before the trip to St. Croix, that he had advised her to speak with an attorney, and that he “had been trying to get her to sign [the agreement] before [they] left” for St. Croix.
During wife’s cross-examination, the trial court raised, sua sponte, the issue of whеther the law of the Virgin Islands should govern the validity of the prenuptial agreement, noting that “[t]he marriage took place and the contract was executed there.” The court allowed the hearing to proceed, but noted that resolution of this issue would “certainly ... require briefs on both sides at this point; and it also may require further evidence, depending on what the law was at the time, because we’re dealing with what the law was in ... 1983 in St. Croix.”
At the conclusion of the hearing, the trial court opined that, under Virginia law, the agreement “is valid on its face.” The court reasoned that, because “it was clear at least for three or four months before they entered into this agreement there was going to be a prenupt,” wife “did have the opportunity to at least discuss it with an attorney.” Because, in the court’s opinion, “there is no evidence of fraud ... [or] deceit,” the trial court concluded that “this was an arm’s length contract that should stand on its face.”
Following briefing and oral arguments on the issue of what law should govern the validity of the prenuptial agreement, the trial court noted that “there is no case in Virginia legally right on point.” However, the court also observed that, “where the parties sign a contract in one jurisdiction but clearly expect it to be performed in another and the validity to be governed by another,” then the law of the designated jurisdiction should apply. Thus, by order dated July 19, 2002, the court ruled “that Virginia law should apply to this case, that the Pre-Nuptial contract is valid under Virginia law; and that even under Virgin Island law the Pre-Nuptial Contract would be valid.” Accordingly, the trial court ordered “that no decree shall be entered
By order dated June 1, 2005, the trial court entered a final decree of divorce awarding wife a divorce a vinculo matrimonii. The trial court, however, denied wife’s request for equitable distribution, reasoning that the parties “waived the same in paragraph 3 of the prenuptial agreement dated July 12, 1983.” This appeal follows.
II. ANALYSIS
On appeal, wife raises three separate, but related, assignments of error. First, wife contends that the trial court should have applied the law of the Virgin Islands when determining the validity of the prenuptial agreement. Second, wife argues that the trial court erroneously held that, under the law of the Virgin Islands, the agreement is valid and enforceable. Third, wife argues, in the alternative, that if Virginia law applies, the trial court erred in holding that the agreement is valid under Virginia law. For the reasons that follow, we affirm the judgment below.
A.
As a threshold issue, we must determine whether, under Virginia choice-of-law rules, the validity of a prenuptial agreement is governed by the law of the jurisdiction where the agreement was executed (the lex loci contractus), or whether it is governed by the law of the jurisdiction where relief from that agreement is sought (the lex fori ).
We hold that, unless the parties сlearly intended for the prenuptial agreement to be governed by the laws of a specific jurisdiction, the validity of that agreement—as with any other contract—is governed by the jurisdiction where the agreement was executed, unless the substantive law of that jurisdiction is contrary to the established public policy of the Commonwealth. 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, we hold that the trial court erred in applying Virginia law to resolve the validity of the agreement.
It is a long-standing rule in Virginia that “[t]he nature, validity and interpretation of contracts are governed by the law of the place where [the contract was] made.... ” C.I.T. Corp. v. Guy,
There are, however, exceptions to this general rule. First, if the evidence indiсates that the parties expressly intended for the law of a specific jurisdiction to govern the validity of the contract, the law of the designated jurisdiction will be applied instead. See, e.g., Guy,
A prenuptial agreement is, at its most basic, a simple contract. See Pysell v. Keck,
Under the circumstances of this case, both parties signed the prenuptial agreement in the Virgin Islands. Thus, the last act necessary to effectuate the agreement—specifically, acceptance of the contractual terms by the offeree—was performed in the Virgin Islands. See O’Ryan v. Dehler Mfg. Co., 99 F.Supp.2d 714, 718 (E.D.Va.2000) (“The place of contraсting is determined by the place where the final act necessary to make the contract binding occurs.”); Madaus v. Nov. Hill Farm, Inc.,
2.
As noted by the Virginia Supreme Court, “the true test for the determination of the proper law of a contract is the intent of the parties.... ” Tate v. Hain,
Initially, the prenuptial agreement itself does not clearly manifest the parties’ intent that Virginia law should govern the validity of the contract. Although the contract mentions Virginia law, it also references the law of other jurisdictions. Specifically, paragraph three of the agreement provides that the parties relinquish any claims they may acquire in each other’s property “under the present or future laws of the state of Virginia or any other jurisdiction.” (Emphasis added). Moreover, the agreement does not contain a forum selection clause or any other stipulation expressly providing that Virginia law governs the validity of the contract. Accordingly, the contract itself does not establish that, at the time the agreement was executed, the parties clearly intended for Virginia law to govern the validity of the contract.
Nor do the circumstances surrounding the execution of the agreеment evidence the parties’ clear intent that Virginia law would govern the validity of the contract. At the time the agreement was executed, the parties resided in Virginia and jointly owned a residence in Virginia. However, there is no evidence that, at the time the agreement was executed, the parties intended to remain permanently domiciled in the Commonwealth of Virginia.
Thus, although the parties had significant contacts with Virginia at the time the agreement was executed, the evidence fails to demonstrate that the parties clearly intended for Virginia law to govern the validity of the contract.
3.
As the trial court correctly noted, if the partiеs merely sign the contract in one jurisdiction, but, at the time of execution, the parties intend for the contract to be fully performed in another, specific jurisdiction, the law of the place of performance will be applied rather than the law of the place where the contract was formally executed. See Arkla,
Here, however, in addition to signing the prenuptial agreement in the Virgin Islands, the parties partially performed the contract in that jurisdiction. Specifically, according to terms of the contract, the parties agreed to refrain from certain postnuptial conduct in consideration of “the marriage.” By exchanging wedding vows in the Virgin Islands, the parties tendered the required consideration, thereby performing a portion of their contractual obligations. Thus, because the marriage occurred in the Virgin Islands, the prenuptial agreement was both executed and partially performed in that jurisdiction. Accordingly, we hold that the second exception to Virginia’s traditional choice-of-law rules—which permits application of the law of the place of performance if different from the law of the place of formal execution—is inapplicable under the circumstances of this case.
4.
Finally, as noted by the Virginia Supreme Court, “[cjomity does not require application of another state’s substantive law if it is contrary to the public policy of the forum state.” Willard,
For these reasons, we hold that the trial court erred in concluding that Virginia law governs the validity of the prenuptial agreement. Regardless, because the trial court correctly determined that, under the law of the Virgin Islands, the agreement is valid and enforceable, we further hold that this error is harmless. Accordingly, we affirm the judgment below.
The Code of the Virgin Islands contains no statutory provisions setting forth the standards by which the validity of a prenuptial agreement should be determined.
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
V.I.Code Ann. tit. 1, § 4 (2005). “Local law,” as used in this statute, “is not limited to Virgin Island statute[s], but also includes Virgin Island case law.” Moore v. A.H. Riise Gift Shops,
Accordingly, to determine the applicable substantive law, we must first look to decisional case law from the courts of the Virgin Islands. If the case law of the Virgin Islands fails to provide guidance as to the validity of this prenuptial agreement, we must next consider the common law rule as expressed in the applicable Restatement. Finally, if the Restatement does not provide a clear statement of the governing rule of law, we must ascertain and apply the common law as “generally understood and applied in the United States.” V.I.Code Ann. tit. 1, § 4; see also Miller v. Christian,
In Dysart v. Dysart,
Because the law of the Virgin Islands does not directly speak to the circumstances under which a prenuptial agreement will be considered valid, we must next consider the
According to section 124 of the Restatement (Second) of Contracts, “[a] promise for which all or part of the consideration is either marriage or a promise to marry is within the Statute of Frauds.... ” Thus, to be enforceable, a prenuptial agreement must be in writing and signed by the parties to be bound. See id. A contract that meets these preliminary requirements is presumed valid, see Dysarb,
Here, wife cоncedes that the agreement is both in writing and signed by the parties to be bound. Accordingly, the prenuptial agreement is presumptively valid. See Dysart,
As pertinent here, section 190 of the Restatement (Second) of Contracts provides that “[a] promise that tends unreasonably to encourage divorce or separation is unenforceable on grounds of public policy.” Restatement (Second) of Contracts § 190(2).
Wife, citing the above-quoted example, contends that “[i]f a large sum promised would encourage divorce, a zero sum would do so as well.” We disagree. The mutual elimination of property rights does not affirmatively encourage parties to separate or divorce. Although such an agreement may simplify division of the parties’ assets in the event of divorce, it falls far short of providing a financial incentive to end the marital relationship. Indeed, as noted in the Restatement, “[a] promise that merely disposes of property rights in the event of divorce or separation does not оf itself tend unreasonably to encourage either.” Id. at § 190, cmt. c. Accordingly, we hold that the prenuptial agreement at issue in this case does not unreasonably encourage divorce or separation and, therefore, does not violate the public interest in maintaining the marital relationship. Cf. Neilson v. Neilson,
Wife also argues, however, that “the manner in which [the agreement] was executed render[s] it unenforceable under Virgin Islands law.” Specifically, wife contends that, “[i]n determining the enforceability of the Agreement, a review of the fairness of the Agreement and the fairness of the circumstances surrounding the execution of the Agreemеnt is necessary.” Wife cites to the alleged lack of “access to independent counsel prior to consent to an execution of the contract” and the “short period” that elapsed from the time that wife saw the agreement “for the first time and her marriage the following day.”
The Restatement (Second) of Contracts does not specifically discuss whether a prenuptial agreement may be invalidated for reasons other than the defenses specifically set forth in its provisions.
For these reasons, we hold that the trial court did not err in concluding that the prenuptial agreement is valid and enforceable under the law of the Virgin Islands, and we affirm the judgment below.
C.
Finally, husband has requеsted an award of the attorneys’ fees incurred on appeal. Initially, we note that husband’s arguments in support of his request for an award of attorneys’ fees primarily focus on wife’s prior, interlocutory appeal, which this Court dismissed for lack of jurisdiction. See note 5, supra. Unquestionably, this Court may, in its discretion, award attorneys’ fees generated during an appeal to this Court. See, e.g., Gottlieb v. Gottlieb,
III. CONCLUSION
For these reasons, we hold that the trial court erroneously applied Virginia law when determining the validity of the prenuptial agreement. However, because, under the law of the Virgin Islands, the agreement is
Affirmed.
Notes
. Wife consistently testified that she did not receive a copy of the agreement until the day before the wedding. Husband, in contrast, testified that wife had a copy of the agreement "for months in advance.” Although the trial court did not expressly resolve this conflicting testimony, we must view the evidence in the light most favorable to husband, the party prevailing below.
. A public notary acknowledged the signatures on the prenuptial agreement when the parties returned to Virginia. The parties agree, however, that notarization was unnecessary and, thus, that the prenuptial agreement became effective at the time it was signed, not at the time that their signatures were acknowledged as valid.
. Wife’s brother and sister-in-law also testified that, although they were with the parties in St. Croix, they never heard husband and wife discussing the prenuptial agreement, nor did they witness the signing of the document.
. We note, however, that Virginia law clearly provides that "[plarties engaged to be married are not dealing at arm’s length,” Carpenter v. Carpenter,
. Wife attempted to appeal the July 19, 2002 order before entry of the final decree of divorce. Reasoning that the July 19 order constituted a non-appealable interlocutory order, this Court held that we lacked jurisdiction to consider wife's first appeal and, therefore, dismissed the appeal without adjudicating the merits of the case. See Black v. Powers, No.2022-02-1,
. Contrary to the position of the concurrence, it is not clear that this agreement would satisfy the test enunciated in Batleman v. Rubin,
. Husband contends that wife did not argue before the trial court that, under Virginia choice-of-law rules, the law of the Virgin Islands should apply. Husband further argues that wife did not lodge a timely and specific objection to the trial court’s ruling that Virginia law should govern the validity of the prenuptial agreement. Accordingly, husband concludes that wife is procedurally barred from arguing this issue on appeal. See Rule 5A:18. We disagree. During oral arguments before the trial court, wife clearly argued that the law of the Virgin Islands should apply. Moreover, wife objected to the July 19 order on the grounds that the trial court "erred in [ ] finding that the Virgin Islands law did not govern the agreement....” Accordingly, we hold that this issue is sufficiently preserved for purposes of appeal.
. Although "[e] very thing relating to the making of the contract is to be governed by the law of the place where it was made; everything relating to the performance of the contract is to be controlled by the law of the place of performance.” Arkla Mfg. Co. v. W. Va. Timber Co.,
. Indeed, in the opening paragraph of the agreement, the parties clearly contemplated a potential change in domicile.
. Accordingly, barring a conflict with Virginia’s established public policy, the law of the Virgin Islands would govern the validity of the marriage itself. See Ranney v. Ranney,
. We note that, in deciding to apply Virginia law to resolve the validity of the prenuptial agreement, the trial court relied, at least in part, on an unpublished case in which a Connecticut trial court applied the “most significant relationship” test enunciated in the Restatement (Second) of Conflict of Laws. See Restatement (Second) of Conflict of Laws § 188 (1971). We note that the Virginia Supreme Court has repeatedly declined to adopt the "most significant relationship” test when resolving choice-of-law issues in the context of tort proceedings. See, e.g., Jones v. R.S. Jones & Assocs.,
. The Virgin Islands, formerly known as the Danish West Indies, is an organized, unincorporated territory of the United States with an independent legislature, executive branch, judiciary, and code of laws. See Revised Organic Act of the Virgin Islands, Pub.L. No. 83-517, 68 Stat. 497 (1954) (codified as amended in scattered sections of 48 U.S.C.) (establishing executive, legislative, and judicial branches of government); see also Convention Between the United States and Denmark, Cession of the Danish West Indies, U.S.-Denmark, Aug. 4, 1916, 39 Stat. 1706.
. We note that, consistent with Dysart, a majority of states “no longer hold [that premarital agreements are] inherently void, invalidating only those agreements found defective in execution or result.” Robert Roy, Modem status of views as to validity of premarital agreements contemplating divorce or sеparation,
. See note 10, supra.
. The American Law Institute published the Restatement (Second) of Contracts in 1981, two years before the prenuptial agreement was executed. Accordingly, we need not address whether the courts of the Virgin Islands would apply the Restatement (First) of Contracts to resolve the validity of a prenuptial agreement executed prior to 1981. Cf. Remole v. Sullivan,
. Similarly, section 190(1) of the Restatement provides that "[a] promise by a person contemplating marriage ... is unenforceable on grounds of public policy if it would change some essential incident of the marital relationship in a way detrimental to the public interest in the marriage relationship.” According to the publisher's comments, section 190(1) "does not prevent persons contemplating marriage ... from making contracts between themselves for the disposition of property, since this is not ordinarily regarded as an essential incident of the marital relationship.” Restatement (Second) of Contracts § 190, cmt. a. It does, however, "preclude them from changing in a way detrimental to the public interest in the relationship the duty imposed by law on one spouse to support the other.” Id. Regardless, wife does not argue that the prenuptial agreement at issue in this case changes an "essential incident of the marital relationship,” contending instead that the contract "tends unreasonably to encourage divorce or separation."
. For cases applying this general rule, see In re Marriage of Noghrey,
. In support of her argument that a majority of jurisdictions consider the circumstances surrounding the execution of the premarital agreement, wife cites to Robert Roy, Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution,
In evaluating the fairness of the circumstances surrounding a premarital agreement’s execution, the courts have taken account of various factors, including the nature and complexity of the agreement’s terms, the extent of and disparity in assets brought to the marriage by each spouse, the parties' respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement's provisions, and the amount of time available to each spouse to reflect upon the agreement after first seeing its specific terms. The factor most often mentioned, and perhaps given the greatest weight, has been the complaining party’s access to independent counsel prior to consenting to the contract terms.
Id. For the reasons discussed in the text, however, we need not decide whether the courts of the Virgin Islands would adopt this approach.
. In this respect, the circumstances of this case are distinguishable from the cases upon which wife principally relies. See Rudbeck v. Rudbeck,
Concurrence Opinion
concurring.
I concur with the majority that the antenuptial agreement at issue is valid and enforceable. In my view, however, the majority errs in holding that only the law of the Virgin Islands is applicable in determining the validity and enforceability of the agreement. I would hold that credible evidence in the record supports the trial court’s judgment that Virginia law governs the validity and enforceability of the agreement and that the agreement is valid under the controlling law in Virginia at the time the agreement was signed.
I.
As the majority notes, pursuant to Virginia’s traditional choice of law principles, “[everything relating to the making of the contract is to be governed by the law of the place where it was made.” Arkla Lumber & Mfg. Co. v. West Virginia Timber Co.,
Viewing the evidence in the light most favorable to husband, the рrevailing party below, the record reflects that the agreement was prepared and provided to wife in Virginia, well in advance of the marriage; that husband encouraged wife to have it reviewed before signing it; and that husband read the agreement aloud to wife before she signed it. The agreement itself reflects that, at the time of its signing on July 12, 1983, the parties both resided in the City of Portsmouth, Virginia. Both parties were employed in Virginia, had recently purchased their marital residence in Virginia, and intended to return immediately to their jobs and families in Virginia following the wedding. The text of the agreement made specific references to Virginia law as the primary law to be applied, reciting expressly in paragraph three that the relinquishment of any claims either party might acquire in the other’s property would be governed “under the present or future laws of the state of Virginia, or any other jurisdiction.” (Emphasis added). The agreement also made specific reference to Virginia Code § 64.1-13, regarding the waiver by each to claim an elective share in the deceased spouse’s augmented estate. Moreover, on their rеturn to Virginia following the brief trip to the Virgin Islands for their wedding, the parties acknowledged their signatures to the agreement before a Virginia notary public, thereby ratifying the agreement in Virginia. Accordingly, I would hold that credible evidence in the record demonstrates that the parties intended for the agreement to be governed by Virginia law.
II.
At the time the parties signed the agreement in 1983 the law of Virginia generally governing premarital agreements was as articulated in Batleman v. Rubin,
To render an ante-nuptial agreement valid, there must be a fair and reasonable provision therein for the wife, or—in the absenceof such provision—there must be 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, and with full knowledge of her rights.
Id. at 158,
At the time the parties signed the antenuptial agreement in Batleman, wife had little property of value, while husband then was worth nearly $250,000 and had substantial income. Id. at 160,
In the current case, each party was fully aware of the other’s assets and property prior to the signing of the agreement. Indeed, the very terms of the agreement acknowledge as much. The record demonstrates that neither of the parties had any appreciable assets at the time of their marriage. At the time that the agreement was signed, husband’s law practice was just beginning and producing little income. Wife’s income was, at most, moderate. Moreover, the parties disclosed their respective financial circumstances to each other when, a few months prior to the time they signed the agreement, they completed a joint mortgage loan application to finance the purchase of their marital residence. Husband’s finances were such that he was unable to obtain a loan to purchase the residence based on his financial standing alone.
The trial court found that wife received the proposed prenuptial agreement in Virginia “months in advance” of the actual signing of the document in the Virgin Islands; that she had assisted her brother in preparing an antenuptial agreement; and that she had worked in a law office which regularly handled divorce cases, and where one of the lawyers was a divorce commissioner. The record reflects that wife had ample opportunity to seek independent legal advice concerning the agreement prior to signing it and that husband read the agreement aloud to wife immediately prior to her signing it. Each party was fully aware of the assets of the other, and each mutually promised the other to relinquish any rights to property of the other acquired during the marriage. Accordingly, I would hold that, consistent with law in effect when the parties signed the agreement, the agreement is valid and enforceable under Virginia law.
CONCLUSION
For these reasons, I would hold that the trial court did not err in its judgment that the antenuptial agreement executed by the parties was a valid and binding agreement under Virginia law.
. See Code § 20-149 (enacted in 1985). See also Batleman v. Rubin,