In North Carolina, premarital agreements (also called “prenuptial agreements” or “prenups”) are governed by the Uniform Premarital Agreement Act, found in Chapter 52B of the North Carolina General Statutes. While the idea of a premarital agreement may be familiar to many people, some aspects of a premarital agreement are often misunderstood. This article will help clear up some misconceptions about premarital agreements and provide some key points to consider when deciding if a premarital agreement is right for you.
A premarital agreement is a contract between prospective spouses setting forth how their assets, debts and future income will be handled in the event of a divorce or the death of one of the spouses. In addition, the premarital agreement can include terms related to spousal support, including a waiver of spousal support.
The requirements for a premarital agreement are simple. One can be created from scratch or from an existing template, but it must be in writing and signed by both parties. The agreement will become effective once the parties are married. A premarital agreement requires both parties to be fully transparent with regard to their financial situation at the time they sign the premarital agreement – if both parties do not fully disclose their financial situation to the other, the court may find that the prenup is void.
A premarital agreement can address many different types of financial issues:
The rules as to how certain assets will be handled pursuant to the premarital agreement can differ greatly from how a court may handle the disposition of assets based on the equitable distribution laws in North Carolina. For example, a premarital agreement can define income earned during the marriage as one party’s separate asset; whereas, our equitable distribution statute would define income earned during the marriage as classified as marital property.
A lawyer does not have to prepare the premarital agreement. If a lawyer is hired to draft the premarital agreement, it is important to understand that it is a conflict for one lawyer to represent both parties so each party should have their own attorney to prepare and review the premarital agreement before the agreement is signed. A lawyer is helpful to ensure the agreement is enforceable and to make sure it does not include a provision that could make the agreement void or otherwise unenforceable.
The parties can contract with respect to almost all matters, except those that would violate public policy or violate the law. Some examples of provisions that Premarial Agreements cannot address include:
Considering and ultimately executing a premarital agreement does not mean you expect your impending marriage will fail. Premarital agreements are simply a way for parties to make marital arrangements—in writing—around financial issues in anticipation of marriage, regardless of the success or failure of a marriage. You should consider a premarital agreement if any of the following apply to you:
The experienced lawyers at Gailor Hunt Davis Taylor & Gibbs, PLLC can assist you. Contact us today to set up your consultation to learn more.
