Premarital Agreements in North Carolina – What you need to know.

NC equitable distribution and alimonyA premarital agreement, often called a prenuptial agreement, is a contract entered into prior to marriage that sets out obligations and rights of the spouses in the event of divorce or death.  A premarital agreement becomes effective only upon the marriage.

Premarital agreements are often a difficult subject of conversation between a couple in love because the suggestion of the need of one implies an unfortunate outcome – divorce.

North Carolina law on prenuptial agreements are governed by the state’s version of Uniform Premarital Agreement Act fount in Chapter 52B of the General Statutes.   The law sets out the requirements: a prenuptial agreement must be in writing and signed by both parties. At the time the engaged couple marry, their prenuptial agreement becomes a legally binding contract.

If you are planning to get married and want a premarital agreement, you should bring it up as early as possible in the process.  Be direct about your concerns with your fiancée and not accusatory.  Explain that a premarital agreement will make things much simpler in the event either of you ever want a divorce.  You should expect the discussion and ultimate signing of the agreement to stretch over a few weeks.

It is very important that your and your fiancée do not use the same attorney for the agreement or wait to the last minute.   Doing either of these things makes the validity of the agreement easier to attack late on.

A premarital agreement may be amended or revoked after the marriage occurs if you and your spouse mutually agree and an appropriately executed revocation or amendment is made.

The contents of the agreement vary from couple to couple because circumstances are different for everyone.  Usually premarital agreements arrange financial matters between the married couple. Premarital agreements also settle the rights and obligations of the to manage and control certain property during the marriage.  Agreements can cover both property brought into the marriage be either spouse.  Prenuptial agreements ensure that the separate property of one spouse owned prior to the marriage remains their separate property  during and after the marriage.   The prenuptial agreement usually discusses how real property (such as a primary home or vacation home) will be paid for, titled and disposed of upon a divorce of death of a spouse.

A premarital agreement may be used to outline the procedure for payment of joint and separate expenses during the marriage.  Often couples establish a joint account for payment of routine bills and expenses and otherwise keep separate accounts

Alimony, postseparation support, and spousal support may be included in a premarital agreement togetehr with issues of  inheritance and spousal rights in the event of a death.

 

_______________________
Scott Allen is a divorce attorney in Raleigh, NC with over twenty years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183 and his email is sallen@allenspence.com

Postnuptial and Postmarital Agreements

 Unlike a premarital agreement which is signed by the parties before they got married, a postnuptial agreement is an agreement entered into between a husband and wife during marriage.

A postnuptial agreement must not violate public policy.  Also, a party cannot waive alimony in a postnuptial agreement unless it is a separation agreement.  A husband and wife living together and not contemplating imminent separation that purports to quantify or limit the duty of support is void as against public policy.

Family law attorney Scott Allen has drafted and litigated about postmarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

How Can I Modify or Revoke My Premarital or Prenuptial Agreement?

I have been asked this question many time over my years of practice:  “I signed a premarital agreement, got married, and now don’t want it; how can I make it go away?”  The answer provided by G.S. § 52B-6 and case law on the issue is that the premarital agreement act in North Carolina provides that a premarital agreement may be amended or revoked after marriage only by a written agreement signed by the parties.

If you want to get out of your prenuptial agreement you need to sit down with your spouse and talk about it.  If he or she does not agree to change it or make it go away, your only choice is to see if you can get the agreement to be declared invalid.

Also, under certain circumstances a party who does not want to be bound by a premarital agreement can prove that it is unenforceable by showing:  (1) The party did not execute the agreement voluntarily; (2) The agreement was unconscionable when it was executed and, before execution of the agreement, the party:

  • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
  • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

As you can see, the issue of disclosure in a premarital agreement should get close attention by you and your lawyer.

It is also very important not to “spring” a premarital agreement on your fiancé just before the wedding.  Not only would doing that likely spoil your relationship with your fiancé, it could create an argument about duress.  Also, to protect the integrity of the agreement, you and your fiancé should have different lawyers.

Family law attorney Scott Allen negotiates and drafts premarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

Premarital Agreements

NC Premarital AgreementNorth Carolina adopted a version of the Uniform Premarital Agreement Act and our version of the act is is applicable to any premarital agreement executed on or after July 1, 1987.

A premarital agreement is a documents signed by parties  in anticipation of marriage that  addressees what will happen in the event of divorce of a spouse or death of a spouse.

Unlike a regular contract, a premarital agreement is enforceable without the exchange of consideration by the parties.  Consideration was a traditional element of contracts under the common law and, in essence, meant that the parties must bargain for and exchange something of value before a valid contract is created.  In family law, North Carolina has abandoned this common law requirement both in premarital agreements and separation agreements.

Although consideration is not required, a valid premarital agreement under the premarital agreement act must have certain qualities:

  • A premarital agreement must be in writing and signed by both parties.
  • A premarital agreement is effective upon marriage and marriage is a prerequisite of an effective premarital agreement.  This means that if the parties do not marry the premarital agreement is not valid.
  •  Premarital agreements may dispose of their property upon divorce through the provisions of the agreement rather than by equitable distribution.
  • Premarital agreements under North Carolina law may control rights and obligations in property, whenever and wherever acquired or located.
  • “Property” is defined as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
  • Premarital Agreements may control the right to sell, transfer, buy, use, exchange, abandon, lease, consume, expend, assign, encumber, dispose of, or otherwise manage and control property.
  • Premarital agreements may bar alimony and postseparation support and attorneys fees under certain circumstances.
  • Premarital agreements may control the making of a will or trust to carry out the agreement.
  • Premarital agreements may impact ownership rights in and disposition of the death benefit in a life insurance policy.
  • A premarital agreement may define which law applies to it.
  • Finally, a premarital agreement may control “Any other matter, including personal rights and obligations, not in violation of public policy or a criminal statute.”
Premarital agreements can be attacked under certain circumstances.  Here is an excellent article that deals generally with attacking agreements under the UPAA.
Family law attorney Scott Allen drafts, negotiates, and litigates premarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.