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Nuptial Agreements

Pre-Nuptial and Post-Nuptial Agreements are intended to guard the individual rights of both husband and wife.

nuptial agreements are intended to guard each spouse's individual rights

Rice Law attorneys work with clients considering marriage and those who are already married, tailoring custom nuptial agreements for their uniquely personal needs.

Pre-Nuptial Agreements

Pre-Nuptial Agreements are becoming more popular and more accepted in society. In the past, the very act of being asked to sign a prenup may have been seen as insulting and a signal that the marriage is starting on rocky ground. Now, more individuals consider a prenup as an essential planning document that simply makes good sense although a recent Harvard Law School study1 showed that less than five (5%) of the population has a prenuptial agreement. It creates an opportunity to have an open dialogue between the couple regarding what's most important to them in marriage, such as finances—one of the biggest reasons marriages end in divorce. While discussing the contents of the prenup, many couples resolve difficult financial questions at a time when they are most in love.

What is a Pre-Nuptial Agreement

A Pre-Nuptial (also known as prenuptial or premarital agreement) is a written contract signed by two people before they get married. The document often includes an inventory of what each person owns and what each party owes (often using a Schedule of Assets and property listing similar to an Equitable Distribution Initial Listing) before they get married. Most states have adopted their own version of the Uniform Premarital Agreement Act codified at Chapter 52B of the North Carolina General Statutes. The Uniform Premarital Act sets out formalities for execution, enforcement provisions and other content.

A Pre-Nuptial Agreement specifies how property will be shared during the marriage, how it will be divided upon divorce and whether either party will pay alimony to the other. Business partners now often insist on having a Pre-Nuptial Agreement to protect themselves and the business if and when their partner's husband or wife files for divorce.

Legal Pre-Nuptial Agreements are written, signed by both paties, and notorized prior to marriage. If no prenup is established and the marriage ends in divorce, marital property can be distributed equitably, which may result in significant loss to a spouse.

Reasons for a Pre-Nuptial Agreement

Common reasons for entering into a Pre-Nuptial Agreement include:

  • Protect and pass separate property to children of a prior marriage
  • Protect the spouse who sacrifices their career and/or assets for the marriage
  • Protect spouse from debts accumulated by other spouse before the marriage
  • Protect pre-marital assets
  • Provide for elderly parents
  • Avoid lengthy litigation in the event of divorce
  • Shield children from litigation
  • Shield a family business from insolvency

Despite all of these reasons for entering into a Pre-Nuptial agreement, the Harvard Study1 indicates that couples may be reluctant to enter into Pre-Nuptial agreements because they underestimate the value of a prenuptial agreement and underestimate the liklihood of divorce. If a couple enters into a prenup, they decide how their property will be divided whereas in the absence of a prenup, state law will govern the decision as to how property is divided.

Proper execution

It is critical that the Pre-Nuptial agreement is prepared in a proper form and properly executed. Common reasons that such agreements are invalidated include: (1) not in writing; (2) not properly executed—both parties must sign a Pre-Nuptial Agreement before they are married and if the Pre-Nuptial agreement includes an alimony waiver, it must be properly notarized; (3) invalid provisions; (4) irregularities such as undue pressure to sign, inadequate time to review, failure to provide full disclosure of property; and (5) unconscionability. An attorney can help you avoid all of these problems. If you are considering signing a prenup, it is important to plan ahead.

Post-Nuptial Agreements

Post-Nuptial Agreements (also known as postnuptial agreements or postnups) are similar to Pre-Nuptial Agreements; the major difference is that a postnup is signed after the parties marry and a Post-Nuptial agreement cannot waive alimony.

Most commonly created for estate planning purposes, Post-Nuptial Agreements can provide a communication tool for spouses who are already married, clarifying relationship responsibilities and providing for each spouse should their relationship end due to divorce. Post-Nuptial Agreements are also often signed as part of a reconciliation following a family law dispute.

If your spouse has requested that you sign a Post-Nuptial Agreement, it is in your best interests to consult an attorney—before signing the agreement—to ensure your rights are protected. Contact Rice Law to schedule a legal consultation.

Post-Nuptial Agreements may be valid under N.C. Gen. Stat. §52-10 as long as the terms do not violate public policy, each party is competent, and other requirements are met.

References:
1 Harvard study on Pre-Nuptial Agreements: http://www.law.harvard.edu/programs/olin_center/papers/pdf/436.pdf


Resources

Read the Uniform Premarital Agreement Act The Law on Premarital Agreements in North Carolina

N.C. Gen. Stat. §52B sets forth NC Law on Premarital Agreements

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