Premarital and Post Marital Agreements (also commonly referred to as Pre-Nuptial and Post-Nuptial Agreements) are a responsible and straightforward way to protect the individual rights of both the husband and wife. Clients often contact Jamie Vavonese at Vavonese Law Firm to work them to create premarital agreements before they wed, as well as post martial agreements after marriage.
What is a Premarital or Pre-Nuptial Agreement?
A 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 listings, like an Equitable Distribution 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.
Premarital agreements specify how property is to be shared during the marriage, how it will be divided upon divorce and whether either party will be required to pay alimony to the other. Premarital agreements have become quite common place today. In fact, business partners are now likely to insist on their partners having a premarital agreements in order to protect themselves and the business if and when their partner’s husband or wife files for divorce.
Do not try to write and formalize a premarital agreement yourself. Seek a qualified attorney to help you create a legal premarital agreement that will be written, signed by both paties, and notorized prior to marriage. If no premarital agreement has been established and the marriage ends in divorce, marital property can be distributed equitably, which may result in significant loss to a spouse.
Proper Execution of Premarital Agreements
It is critical that the premarital 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 Premarital Agreement before they are married and if the Premarital 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.
Why should you consider a Premarital Agreement?
- 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
Post-Marital Agreements (also referred to as postnuptial agreements or postnups) are similar to Premarital Agreements; the major difference is that a post-marital agreement is signed after the parties marry and a premarital agreement cannot waive alimony.
Post-Marital 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.
Post-Marital Agreements are most often created for estate planning purposes and can provide a communication tool for spouses who are already married. Post-marital agreements can also clarify relationship responsibilities for each spouse should their relationship end due to divorce. Post-Marital Agreements are also commonly signed as part of a reconciliation following a family law dispute.
If your spouse has requested that you sign a Post-Marital Agreement, it is in your best interests to consult an attorney—before signing the agreement—to ensure your rights are protected. Jamie Vavonese can work with you to ensure that you understand your rights.