This post was updated in October 2020.
Let’s face it, the topic of a prenuptial agreement can be an awkward conversation to have with your partner. Couples have commonly tiptoed around this taboo topic for fear of seeming cold-hearted, or not believing the marriage will last. However, the stigma is being challenged now more than ever and future spouses are increasingly open to having this important conversation.
What is a premarital/prenuptial agreement?
A premarital, or prenuptial, agreement (“prenup”) is a contract two parties enter into before they marry that governs rights and obligations during the marriage and in the event of separation, death, or divorce.
In North Carolina, prenuptial agreements must be in writing and signed by the future spouses before the couple is married. The prenuptial agreement won’t actually take effect until the couple gets married. If the couple never marries, the agreement becomes null. Couples may amend or revoke their prenuptial agreement later on, but all modifications must be in writing and signed by both spouses.
What is the benefit of signing a prenuptial agreement?
In North Carolina, property acquired by parties during the marriage becomes “joint” property or “marital” property. In the event of a divorce, marital property is divided between spouses. A prenuptial agreement can distinguish between marital and separate property, and help divide the assets acquired during the marriage. Prenuptial agreements have also been used to help protect solo business ventures that a spouse may own. Further, even individual property owned before the marriage can be swept up into the joint property classification if it is not extremely clear who owned what and when.
Premarital agreements lay out what the couple will do with various assets and rights in the event of a divorce or death of a spouse. These contracts must be in writing and executed before the marriage and they must be fair and reasonable based on full disclosure of all assets and liabilities by both parties. Additionally, both parties cannot be represented fairly by one lawyer, so each spouse must have separate attorneys prepare and review the documents before signing.
North Carolina law does limit what a prenup can and cannot do, and all or part of the contract may be found void if it includes prohibited material. Be sure to let your experienced family law attorney help you in drafting a legal prenup.
A North Carolina Prenuptial Agreement Can:
- Distinguish between marital or divisible property and separate property
- Protect one spouse from the debts of the other
- Provide for any children either spouse has from previous relationships
- Keep family heirlooms, family business interests and other property in the birth family
- Supplement and protect your estate plan
- Make it easier to distribute property equitably if the marriage ends in divorce
- Specify which spouse is responsible for which financial items during the marriage, for example, decide who is responsible for preparing the tax returns
A North Carolina Prenuptial Agreement Cannot:
- Require either spouse to do something prohibited by law
- Pre-determine issues of child custody or child support
- Waive either spouse’s right to alimony in the event of a divorce
- Provide a financial or another incentive for divorce
- Specify which spouse is responsible for non-financial personal or household matters, for example, pre-determine who is responsible for what chores or decide how children will be raised
What Is Included In A Prenuptial Agreement?
- How certain property (cars, houses, investments, and other property that’s not easily liquid) will be divided in the event of a divorce
- Who is responsible for specific debts, rather than having each spouse be responsible for half of each debt
- Which state law governs, since different states have different premarital agreement laws
- How disputes will be handled should one spouse decide not to “play by the rules” set in the prenup
- Whether or not alimony or spousal support (not child support) should be waived (if one spouse has a considerably higher income, the prenup can be used to construct alimony payments if the marriage fails)
Do I have to sign a prenuptial agreement?
A party cannot be compelled to sign an agreement or to give up any rights they may not want to. A prenuptial agreement must be signed voluntarily. By talking openly about the reasons one or both spouses may desire a prenuptial agreement and by negotiating a fair exchange of rights and obligations, couples can enter a marriage with some certainty of the outcome if the marriage does not succeed.
If a party did not enter into the prenuptial agreement voluntarily, that can be grounds to invalidate the prenuptial agreement. North Carolina has no statutory definition of involuntariness and the issue has been left entirely to the courts. Voluntariness is where the procedural fairness of the agreement becomes critical. If procedural unfairness reaches a head, the agreement will be deemed involuntary and the court will not enforce it.
Is my North Carolina prenuptial agreement enforceable in other states?
North Carolina follows the Uniform Premarital Agreement Act (UPAA) which makes any valid prenuptial agreement enforceable in all other states.
Is my out-of-state prenuptial agreement enforceable in North Carolina?
Many states have adopted the Uniform Premarital Agreement Act and thus most out-of-state prenuptial agreements are enforceable in North Carolina. If you have questions, you should contact our experienced family law lawyers.
Contact the experienced family law attorneys at SeiferFlatow
A premarital agreement is a way to protect yourself before you enter into the lifelong commitment of marriage. It is important to have an attorney draft and execute a premarital agreement for you so that the agreement will be enforceable and it will be written to best protect whatever you want to include in it. If you are considering a premarital agreement, contact our family law attorneys today at 704-512-0606 to set up a consultation.