Prenuptial Agreement in North Carolina
What is a Prenuptial Agreement?
A prenuptial agreement is a contract made by a couple, before marriage, in the event that the anticipated marriage ends in divorce.
N.C.G.S. § 52B-2 defines a premarital agreement as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The purpose of a premarital agreement is to decide how certain property and financial matters are to be handled if the marriage does not work out. Note that a prenuptial agreement differs from a separation agreement. A separation agreement also is an agreement regarding how certain property and financial matters are to be handled. However, a separation agreement is entered into after a married couple has separated (click here to learn more.)
What are the Requirements for an Enforceable Premarital Agreement?
A premarital agreement under N.C.G.S. § 52B-3 must be reduced to a writing which is signed by both parties, and it can be enforceable without consideration. The agreement does not need to be notarized unless it also accounts for equitable distribution.
What Items Can a Premarital Agreement Account For?
N.C.G.S § 52B-4 allows parties who are drafting a prenuptial agreement to contract with respect to:
- The rights and obligations of each of the parties with regard to any of the property of either or both parties (whenever and wherever acquired or located);
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support (alimony);
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
Any other matter, including the parties’ personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
The statute also provides that the right of a child to receive child support may not be adversely affected by a premarital agreement. This is because the focus of courts is to provide for the best interests of the child in a child custody dispute. Because the child’s best interests need to be assessed separately, a premarital agreement cannot decide on child custody arrangements and child support amounts.
Are there Any Defenses to an Already-Signed Agreement?
N.C.G.S. § 52B-7 specifies what a party to a premarital agreement must be able to prove in order to make the agreement unenforceable. Because North Carolina courts have a strong interest in enforcing premarital agreements, the challenger of a prenup must have strong evidence.
In order to have an agreement be unenforceable, a party must be able to show that:
- They did not execute the agreement voluntarily; or
- The agreement was not fair when it was executed and before it was executed, the challenger:
- Was not provided an accurate disclosure of property or financial obligations of the other party;
- The challenger did not expressly waive, in writing, any right to an accurate disclosure of the property and/or financial obligations of the other party; and
- Did not have, or could not have had, an adequate knowledge of the property and/or financial obligations of the other party.
Premarital agreements are unenforceable if the terms of the agreement leave a spouse to be a public charge. As previously mentioned, consideration is not necessary for a premarital agreement, as the marriage itself is considered by the courts to be sufficient consideration for the agreement.
Premarital agreements can be complicated. Ensuring that your wishes are properly expressed in an agreement can be difficult. If you have any questions about premarital agreements or would like to review the terms of one before you sign it, it would be wise to speak with an experienced family law attorney. The attorneys at Gilles Law, PLLC are here to assist with your inquiries.
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