Prenuptials
What is a Prenuptial Agreement in NC?
A prenuptial agreement is a contract between two individuals who plan to marry – which they sign prior to their marriage. It can contain a variety of issues relating to marital matters in the event the couple separates, divorces or a spouse dies. The agreement becomes effective at the time the couple marry.
Issues generally covered in a prenuptial agreement are details about property division, alimony or waiver of alimony, responsibilities and rights of the spouses and other factors. In North Carolina, the agreement cannot cover issues relating to child custody or child support.
To be valid, the prenuptial agreement must be a written document and must be signed by both individuals. Notarizing the agreement is wise. An extra measure can be taken to make your prenuptial agreement valid against third party creditors by filing it with the Register of Deeds.
The agreement can be amended or even revoked at a later date prior to separation, divorce or death of a spouse if both individuals sign the amendment or revocation.
Benefits of a Prenuptial Agreement
Approaching your fiancé about a prenuptial agreement can be a delicate conversation. Some people incorrectly see a premarital contract as an acknowledgement that the marriage will likely fail. However, there are many good reasons for having a prenuptial agreement.
A well-planned and well-written prenuptial agreement is a way to plan for the unpleasant possibility that a marriage may fail. Given modern marital statistics, responsible couples are wise to consider all eventualities and pre-plan for their protection and comfort. This allows the couple to determine their own futures without having a judge do it for them.
When one or both individuals entering marriage have substantial assets, it is particularly wise for the couple to have a prenuptial agreement. Individuals entering wedlock for a second time may want to prevent repeating the mistakes of their first marriage by defining the distribution of assets and debt in the event of divorce. This becomes especially important to spouses in subsequent marriages who want to ensure that their children from a former marriage receive their assets. There are many reasons why thinking couples may want establish what their expectations are in a marriage and what their rights are if the worst-case scenario happens.
Can I Get Out of My Prenuptial Agreement?
Prenuptial agreements are binding contracts if they are executed in good faith. However, North Carolina provides for invalidating the agreement if you did not execute the prenuptial agreement voluntarily or if the agreement was “unconscionable,” or essentially unfair, when it was executed.
Not executing the prenuptial agreement voluntarily can include issues such as being coerced, hurried, pressured or threatened into signing the contract – for example, did your spouse hand you with a surprise prenuptial contract on the day before your wedding? Whether the agreement is unconscionable is decided by a judge who will look at number of factors to determine if unfairness exists – for example, did one spouse hide assets or withhold crucial information from the other.
Do I Need an Attorney for a Prenuptial Agreement?
Prenuptial Agreements can be complicated contracts. A legal mistake can have profound consequences. Couples sometimes feel awkward expressing their wishes in writing the agreement. An experienced family law attorney who is sensitive to the emotional issues can make the process more comfortable, ensure that your prenuptial agreement leaves nothing out – and can aggressively defend the contract in court if necessary.
