Premarital and postmarital agreements (also commonly referred to as prenuptial and postnuptial agreements) are a responsible and straightforward way to protect the individual rights of both the husband and wife either prior to marriage or after the parties are married.
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 commonplace today. In fact, business partners are now likely to insist on their partners having a premarital agreement in order to protect themselves, and the business if 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 parties, and notarized 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.
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.
Postmarital agreements (also referred to as postnuptial agreements or postnups) are similar to premarital agreements; the major difference is that a postmarital agreement is signed after the parties marry and a postnuptial agreement cannot waive alimony.
Postmarital 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.
Postmarital agreements are most often created for estate planning purposes and can provide a communication tool for spouses who are already married. Postmarital agreements can also clarify relationship responsibilities for each spouse should their relationship end due to divorce. Postmarital agreements are also commonly signed as part of reconciliation following a family law dispute.
If your spouse has requested that you sign a postmarital agreement or you are getting married and you want to discuss a prenuptial agreement, it is in your best interests to consult an attorney—before signing the agreement—to ensure your rights are protected.
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Jamie Vavonese can work with you to ensure that you understand your rights. Contact her at 919-833-7454.
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