While many people associate prenuptial agreements with the very wealthy, they can actually benefit couples at all levels of income and debt. In fact, at Myers Law Firm, we encourage all couples to consider signing one before they marry.
Keep reading to learn more about how prenuptial and postnuptial agreements work in North Carolina as well as how they affect divorce cases.
A Brief Explanation of Property Division in North Carolina
The first step towards understanding North Carolina nuptial agreements is learning about divorce and property division. After all, marriages don’t simply involve a romantic union—you’re also combining your finances and assets.
For legal purposes, married couples have three types of property:
- Marital property: Most income, property, assets, and debt that you acquire during a marriage.
- Divisible property: Property that was earned before a couple separates but then changes in value post-separation.
- Separate property: Income, property, assets, and debt you acquired before your marriage. Additionally, inheritances and gifts to a single spouse are typically separate property.
North Carolina is an equitable distribution state. In other words, divorcing couples must divide their marital and divisible property fairly (this doesn’t have to be a 50/50 split, although the court will start by presuming a 50/50 split is fair). Your separate property will stay yours unless you commingled it with marital property.
What Are Prenuptial and Postnuptial Agreements, and How Do They Affect Property Division?
Nuptial agreements, when valid, dictate how a couple will divide their property and debt if they separate or divorce. They can also stipulate how much alimony or spousal support a spouse will receive.
There are two types of nuptial agreements: prenuptial and postnuptial. You enter a prenuptial agreement (prenup) before the wedding. If you sign an agreement during your marriage but before a separation, it’s a postnuptial agreement (postnup).
You might benefit from a prenup or postnup if:
- You or your spouse accumulated significant assets before you married.
- One of you has significant debt or plans to take on debt.
- You have a child from a previous marriage and want to protect his or her inheritance.
- You want to protect a family business.
- You want to exclude family heirlooms, property, or other valuable assets from your marital property.
- You want to predetermine how much alimony a spouse will receive.
- You are supporting your spouse while he or she completes a lucrative academic or vocational program.
In other words, if you want to control your spouse’s access to certain assets or limit your exposure to his or her debt, a prenup or postnup is a good idea.
Prenups also offer another benefit: transparency. Financial problems are one of the most common causes of divorce. To enter a prenup or postnup, you and your fiancé or spouse will have to discuss your financial situations with each other in detail since failure to disclose your debts and assets might invalidate the nuptial agreement.
While proposing a prenup isn’t most people’s idea of a romantic gesture, entering a marriage with a full understanding of your spouse’s financial circumstances could prevent unpleasant surprises later, and it can actually provide a wonderful way to start a marital relationship on solid and honest ground.
Are There Limits to What a Prenup or Postnup Can Do?
While prenups and postnups can be very useful, they have their limits. A nuptial agreement cannot set any stipulations or terms that violate North Carolina law or public policy. A nuptial agreement also cannot:
- Determine child custody
- Set child support payments
- Encourage divorce by offering financial or other incentives
- Delegate spousal responsibilities, such as caring for children or completing household chores.
If you have questions about the validity of a nuptial agreement, you should contact a family law attorney immediately.
How Can My Spouse and I Enter a Prenuptial or Postnuptial Agreement?
North Carolina’s general statutes have a special section devoted to prenuptial and postnuptial agreements. This section is called the Uniform Prenuptial Agreement Act (UPAA).
According to this act, a valid prenup or postnup must be:
- In writing
- Entered into voluntarily by both spouses
- Based on full disclosure of each spouse’s financial situation (including debts)
While not specifically required by the UPAA, we recommend that a prenup be signed in front of a notary.
It’s important that your prenup clearly defines its terms and conditions. Vague or misleading language could result in disagreements and litigation later on. And, if your prenup or postnup contains unfair or illegal terms or conditions, the court might invalidate all or part of the agreement. While you can try to draft a prenup or postnup on your own, it’s typically in your best interest to consult an experienced family law attorney for help.
Additionally, you and your fiancé or spouse cannot have the same prenup or postnup lawyer. A prenup lawyer can’t fairly represent two parties when they have potentially conflicting interests. While this might seem unnecessary or expensive, the cost of drafting a valid and binding prenup still might be significantly less than the cost of a contested divorce.
How Nuptial Agreements Affect Divorce Cases in North Carolina
Since property division is one of the most contentious issues during a divorce, a valid prenup or postnup can help expedite your divorce and reduce conflict. When you have a valid prenuptial agreement, you and your spouse should simply follow its terms, which can speed up the property division part of your divorce process and cut down on litigation costs.
Before you file for divorce, it’s important to get a copy of your prenuptial or postnuptial agreement. Your attorney will need to review the agreement and make sure it’s valid. If the prenup appears invalid, it may be fully or partially set aside. If the prenup is valid, however, the court must follow its terms.
Contact Myers Law Firm If You Need Help with a Prenuptial or Postnuptial Agreement
If you have questions about drafting a prenuptial or postnuptial agreement, or about how an existing nuptial agreement will affect your divorce case, the attorneys at Myers Law Firm are here to help. We can answer any questions you may have and help you find affordable, efficient legal solutions that meet your needs.
While we pride ourselves in handling divorce issues peaceably and with compassion, we won’t hesitate to fight aggressively if needed to protect your rights. To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or contact us online using our online contact form.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.