Prenuptial Agreements in North Carolina – the in’s and out’s
Prenuptial Agreements in North Carolina (also called premarital agreements or “prenups”) are contracts that are entered into by two people who are planning to get married. These agreements are contemplated by and governed by North Carolina General Statutes Chapter 52B. To be enforceable, a prenup must be in writing and signed by both parties. The purpose of a prenup is to settle certain financial issues between the parties so that in the event of the demise of their marriage, the parties can avoid the costly legal fees that come with a contentious divorce.
What types of issues can you resolve in a prenup?
The main purpose of a prenuptial agreement is to resolve financial issues between the parties. In other words, a prenuptial agreement can define what assets each party brings to the marriage and label them as “separate property” such that they are not subject to equitable distribution. In addition, the prenup can outline how certain assets that may be acquired during the marriage would be treated in the event of a divorce. For example, if you are a professional real estate investor who buys and sells a lot of property, you can clarify in the prenup that all of your real estate, regardless of when it is purchased, remains your separate property in the event of a separation and divorce.
In addition, a prenup can resolve the amount and length of spousal support (i.e. alimony) that one party would have to pay (or not pay) in the event of a separation. Finally, a prenup can resolve what would happen to certain assets in the event of the death of one spouse.
Do you need a prenup?
The vast majority of people who are thinking about getting married do not need a prenuptial agreement. However, if you have significant assets that you want to protect in the event of a divorce, or if there is a significant income differential between you and your spouse, then you may want to consider a prenuptial agreement.
In addition, if you have already been through a costly divorce once, then you understand how stressful and financially taxing the process can be. If you are older and getting married for the second time, then a prenup may be a valid option for you.
What are the limitations of a prenuptial agreement?
There are two issues that a prenuptial agreement cannot address – Child Custody issues and Child Support. These are two issues that are resolved for the trial court to decide (of you and your spouse through a separation agreement). You can include them in your prenuptial agreement, but sections dealing with these issues would be unenforceable.
When do you need the help of a family law attorney?
A prenuptial agreement is a significant legal contract with significant legal consequences. Regardless of whether you are considering a prenuptial agreement or you have been presented with one by your fiancé, then I highly recommend consulting with a family law attorney in your area.
I’ve written extensively on the different ways that a prenup in North Carolina can be attacked by one spouse in the event the marriage goes south. Having a lawyer draft your prenup is the only safe way to make sure your agreement is valid and enforceable.
There are a number of “do-it-yourself” outfits online that will give you template prenups that you can download very inexpensively. However, these templates typically contain clauses that are either unnecessary in your situation or would harm you if you don’t fully understand the legal consequences of including them. In addition, frequently these contracts leave out certain sections that should be included. The cost of having a valid prenup drawn by a licensed family law attorney is more than outweighed by the benefits you will receive in the event that you may need to separate from your spouse someday.
In addition, if you are presented with a prenup – you must understand what you are signing and the legal significance of that contract. This could be one of the most important decisions you make, outside of marrying this individual. Most people do not want to negotiate a prenuptial agreement in the months before their marriage, but if your marriage breaks down, you will be happy you did.
If you have further questions about whether or not a prenup is right for you, please feel free to give our office a call at (919) 460-5422 or fill out our contact form to send us a message.