What is a Prenuptial Agreement?
A prenuptial agreement is a premarital agreement that is entered into before marriage and sets out the terms of separation. Prenuptial agreements are usually enforceable unless the agreement was entered into under duress, fraud or the agreement sets out unreasonable grounds thus rendering it void as a matter of public policy. Prenuptial agreements are usually signed after the couple enters into an engagement and before the marriage ceremony. Individuals who want prenuptial agreements are usually wealthy individuals, individuals who have been married before or people of advanced age. As mentioned, prenuptial agreements can include any terms over which the couple wants to contract over unless it is illegal. Couples frequently contract over asset and debt distribution, liabilities and child rearing. Some agreements include unusual, but legal terms, surrounding monetary penalties after infidelity as well as who retains custody of a pet during separation. Although couples can choose to contract over a wide range of topics, there are standard requirements contracting parties must follow that will result in an enforceable contract.
What Constitutes a Valid Prenuptial Agreement?
Parties must agree to a written contract that is signed before the marriage in order to constitute a valid prenuptial agreement. Firstly, both parties must freely enter into the contract without any pressure or duress. Secondly, all terms must be reasonable and fair. The terms contemplated in the agreement should apply to both parties where possible as to not bias one party over the other. Further, terms that are too speculative, overly personal (i.e., how a spouse should keep his or her appearance), or far-reaching (i.e., agreements seeking to control the actions of non-parties). Each party must fully disclose all assets, debts and liabilities. This rule usually targets the higher earning spouse who does not want a lower earning spouse to have a clear picture of the sources of their wealth. This rule also applies to spouses who are in heavy debt and seek to hide the debt. Importantly, each party to the prenuptial agreement should hire his or her own attorney to seek legal advice. It is a conflict of interest and unethical for one attorney to represent the interests of both parties who are in effect, adverse parties, for the purposes of the agreement. Even if one party chooses not to hire an attorney, that party should know that they are entitled to an attorney if they so choose.
Common Prenuptial Agreement Disputes
Common disputes that arise out of prenuptial agreements come to bear during marital separation when one spouse seeks to invalidate the agreement. The arguments advanced for the invalidation of a prenuptial agreement can come from credible and non-credible parties. Therefore, each party seeking to invalidate an agreement is subject to a credibility review as long as the agreement bears their signature. Parties who wish to invalidate the agreement can do so if the party believes they did not freely enter into the agreement thus were subject to pressure or duress. Another ground for invalidation is where one party is not aware of their right to seek the advice of legal counsel before signing. In this case, the court will review the totality of the circumstances as well as the education and sophistication of the party to render a decision.
Charlotte Divorce Attorneys
The attorneys at Powers Landreth PLLC have represented and advised clients on prenuptial agreements for many years. We will fight for your right to have an agreement invalidated or enforced based your unique needs. We have substantial knowledge in prenuptial contract law and we will aggressively represent your interests. Contact us now for a consultation.Learn More
The idea of executing a prenuptial agreement, also known as a premarital agreement, can be scary for any couple on the road toward marriage. But in all reality, prenuptial agreements are an increasingly common situation for couples to face. Moreover, couples can decrease the potential friction associated with a prenuptial agreement through an understanding of several important considerations.
Create a Prenuptial Agreements In Writing
As outlined in in Chapter 52B of the North Carolina General Statutes, prenuptial agreements must be made in writing and signed by both spouses. Without a valid writing signed by both parties, the prenuptial agreement becomes invalid and unenforceable.
Make Changes to a Prenuptial Agreement In Writing
Chapter 52B also provides that any changes to a prenuptial agreement in North Carolina must be made in writing and signed by both parties. The writing requirement applies if the spouses want to amend the prenuptial agreement to feature different terms. The same requirement applies if the spouses wish to revoke or cancel their prenuptial agreement.
Avoid Last-Minute Prenuptial Agreements
This might seem like common sense. But it is worth hammering home nonetheless. The less time couples leave for the negotiation and drafting of a prenuptial agreement, the more likely the chance of dispute. When couples rush to create a prenuptial agreement shortly before their wedding, the chance of leaving out important terms or considerations escalates exponentially. Plan ahead to ensure that you and your spouse feel comfortable with your prenuptial agreement.
Separate Premarital Assets from Postmarital Assets
The separation of premarital and postmarital assets can be extremely important. If spouses commingle or mix their assets from before and after marriage, the distribution of property during divorce can get muddled. In such circumstances, it can be difficult to prove which spouse owned what property before their marriage. That would make a prenuptial agreement exceedingly difficult to enforce.
Treat Your Future Spouse Honestly and Respectfully
Whenever creating a prenuptial agreement, it is paramount for future spouses to remember that they are about to get married. They want to spend the rest of their life together. If either spouse enters prenuptial negotiations forcefully or aggressively, they may do irreparable harm to their relationship. That is why it is crucial to act in an upfront, honest and respectful way throughout the creation and execution of a prenuptial agreement.
Speak With an Experienced Family Law Attorney Today
If you are dealing with a prenuptial agreement, divorce or other aspects of family law, it is important to contact an experienced attorney. Don’t hesitate to reach out to Powers Landreth PLLC in North Carolina for help.
Commonly referred to as prenuptial agreements, premarital agreements are made between potential spouses before marriage. These agreements outline certain rights and responsibilities for each spouse, such as the division of property upon death or divorce.
In Chapter 52B of the North Carolina General Statutes, we find the Uniform Premarital Agreement Act. This act outlines the framework for premarital agreements in North Carolina.
Under Sections 52B-3 and 52B-4, we find the requirements for premarital agreements in North Carolina. First and foremost, premarital agreements must be written and signed by both spouses. Without a writing signed by both spouses, premarital agreements are not valid. Additionally, even if one spouse does not receive any benefit under the agreement, it is still valid and enforceable.
Similar requirements exist for amendments to or revocation of a premarital agreement. Both spouses must execute and sign a writing outlining the changes or elimination of the agreement. Even in the absence of consideration, where one spouse does not receive any benefit, the amended or revoked agreement can be valid and enforceable.
North Carolina outlines eight different areas under which prospective spouses can create a premarital agreement. Premarital agreements in North Carolina are allowed to govern:
- The rights and obligations regarding property owned by either or both spouses;
- The right to conduct real estate transactions (purchase, sale, transfer, mortgage, etc.) concerning property;
- The division of property upon certain marriage-ending events, such divorce or death;
- The right to change or remove obligations concerning spousal support;
- The establishment of estate planning mechanisms (wills, trusts, etc.) to carry out all or part of the agreement;
- The control and ownership of the death benefit from a life insurance policy;
- The right to choose which legal system governs the agreement; and
- The ability to create other conditions, so long as those conditions conform to the law and public policy.
There is an important exception. The parties to a premarital agreement are not allowed to prevent children from receiving child support. That is one area that is off limits for premarital agreements in North Carolina.
Do You Need Legal Counsel from an Experienced Family Law Attorney?
Whether you are dealing with a prenuptial agreement, divorce or other aspects of family law, there is a lot to consider. Personal needs are balanced against family wellbeing. With so much on the line, it can difficult to know where to start. That is where an experienced family law attorney can make a true difference, explaining your rights under the law and planning an appropriate strategy. That way you will be in the best position for a successful outcome.
Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience in matters of family law. If you have questions about a prenuptial agreement, divorce or other aspects of family law, please feel free to contact us at your earliest convenience. We will work tirelessly to help you overcome any obstacles in your path. The attorneys at Powers Landreth PLLC are available 24/7 by phone at 704-342-4357, by fax at 980-209-0029 and online by completing a simple form.