North Carolina matrimonial law establishes the framework for every marriage in our state. But the legal rules that establish a marriage were never intended to regulate all the complex relationships that can connect a husband and wife. It’s left to the couple themselves to work out a way to deal with each other—and, together, as partners dealing with the wider world.
Fortunately, the nature of marriage allows for a lot of adaptability to meet the specific needs of each couple. Before a marriage, a couple can create a legal contract between themselves that complements the marriage contract. Such a premarital agreement or prenuptial agreement, if properly prepared by a North Carolina marriage law attorney, will automatically be activated when the couple marries, and will provide legal protection to each party.
Understanding how prenuptial agreements work
A prenuptial agreement—sometimes called a “prenup”—is a binding legal contract voluntarily entered between two people who intend to marry. They are used most often for second marriages or when one person comes to the marriage with substantially greater income or property than the other. Prenuptial agreements are more common than postnuptial agreements, which are similar contracts drawn up after a wedding takes place.
A prenuptial agreement will usually be prepared by a family law attorney working for the engaged couple, or (more commonly) negotiated by attorneys for each of the engaged parties. The agreement must be in the form of a written document that is signed by both parties. It automatically goes into effect when the couple marries. However, if the married couple later decides that the agreement needs to be changed or terminated, that’s okay. As you would guess, any amendment or revocation of the agreement must also be written and signed by both parties.
The many purposes of premarital agreements in North Carolina
There is a popular belief that prenuptial agreements exist only to protect a wealthy person’s assets when marrying a younger, less wealthy spouse. That’s simply not true. Prenuptial agreements can be used for that purpose, but that’s not the sole—or even the most important—purpose.
There are many reasons why parties might choose to enter into North Carolina prenuptial agreements, including:
- Defining what assets or debts constitute separate property for each spouse.
- Assigning specific property that shall be under only one spouse’s control for the purpose of commercial exploitation, sale, lease, or other functions.
- Determining spousal support or alimony obligations should the parties separate or divorce in the future.
- Determining how property should be disposed of in the case of death, divorce, separation, or other event.
- Specifying that one party may be entitled to a larger share of marital assets if a divorce follows marital misbehavior—for instance, an extramarital sexual relationship—of the other party.
- Imposing special duties or obligations on each spouse. Yes, some couples actually use prenuptial agreements to divide household chores.
- Making special provisions for the care or treatment of minor children or stepchildren. Under North Carolina law, a prenuptial agreement cannot harm the interest of a child, but it’s okay to give a child special consideration in a prenup. A prenuptial agreement will not be binding on issues of child support or custody.
If a valid prenuptial agreement exists when a couple begins a divorce action, the judge will use that agreement for deciding division of property and alimony considerations. Of course, it is possible for the lawyer representing either spouse to ask that the prenuptial agreement be rejected as illegitimate, and the judge will then have to rule on the validity of the contract.
Many North Carolina prenuptial agreements will have “sunset clauses,” especially for provisions that restrict behavior or impose unfavorable financial terms during a divorce. For instance, if Mr. Green’s last three marriages failed because of his infidelity, it may be prudent for his fiancée to demand a prenup that penalizes Joe financially if he is found to be cheating during the first ten years of marriage—but the penalty may diminish as each year passes, or there may be no penalty at all after the seventh anniversary.
Getting the results you need from a North Carolina premarital agreement
Designing and drafting a prenuptial agreement in North Carolina can be extremely complex. If you believe that you need a North Carolina prenuptial agreement or postnuptial agreement, you should contact an experienced North Carolina family law firm. Failure to draft the agreement carefully may mean a judge rejects the contract as invalid just when you need its protection the most.
The Speaks Law Firm provides representation in family law cases for residents throughout the Wilmington area, including New Hanover County, Pender County, Brunswick County, Columbus County, and Robeson County. Call us today at 910-341-7570 or toll-free at 877-593-4233 to discuss your needs or to schedule a consultation with one of our attorneys.