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Updated on: July 28, 2024 · 9 min read
You might have thought that a prenuptial agreement was only for the wealthy. However, no matter your age or income level, it may be in both spouses’ best interests to have a prenuptial agreement in place. While thinking about divorce before you have even gotten married may seem contradictory, or as if you are setting your marriage up to fail. But it cannot hurt to give both spouses the peace of mind and security they need to enter into the marriage knowing that they will be protected if it fails.
Getting your prenuptial agreement set up in North Carolina does not need to be a hassle. Understanding which elements should be included and what makes your prenuptial agreement valid can help you and your soon-to-be spouse prepare accordingly.
When you are interested in getting a prenup before your wedding day, it is important to be open and honest with your future spouse. If your soon-to-be spouse approaches you requesting a prenuptial agreement, you do not need to panic.
This does not mean your marriage is doomed to fail. What it does mean is that you are working with your partner to ensure both of you are protecting your financial and property rights and are taken care of and supported if your marriage ultimately ends. Divorce can be messy, and having a prenuptial agreement in place can ensure neither spouse can take advantage of the other if the divorce becomes particularly contentious.
However, you cannot force your future spouse to enter into a prenuptial agreement. The only way a prenup is valid is if both parties voluntarily agree to it without being coerced. If there is any indicator that the prenup was signed under coercion or by force, it can be tossed out by the court. When creating your prenuptial agreement, hire independent legal counsel to ensure it aligns with your best interests and North Carolina law.
As you begin working out the terms of your prenuptial agreement, it is crucial to remain completely transparent regarding your assets and liabilities. One of the biggest points of contention in divorce is how your marital assets and debts will be separated. Since North Carolina is an equitable distribution state under G.S. 50‑20, your marital property will not be divided 50/50, and it will be divided fairly or equitably.
This means you and your spouse can work together to determine how your marital assets and debts should be split if your marriage ends in divorce. It will be crucial to identify assets that may be considered separate property. For example, if you receive an inheritance, it would generally be considered separate property. However, if you start a business together, the revenue generated from this business may be considered marital property.
You may also want to discuss how marital debts will be distributed. If you have credit card debt, for example, will you split it 50/50? Or will the spouse who racked up the debt bill be responsible? How you decide to craft your prenuptial agreement is entirely up to you. Other matters that you may want to address in your prenup include whether spousal support will be paid and what will happen to your marital home.
According to G.S. § 50-16.3A, while alimony can be awarded in divorces, there is no guarantee. In many situations, alimony is only awarded if one spouse is financially dependent on the other. Alimony can be temporary or permanent depending on the length of your marriage, physical and mental health, and other factors. For example, if you are the higher wage earner, you may want to include a provision in your prenup that allows alimony to be paid for a specific number of years or cease once the lesser earning spouse can financially support themselves or if they remarry.
Your prenuptial agreement can also discuss how your marital real estate will be distributed. Spouses often find it difficult to decide whether one spouse will remain in the shared home or the home will be sold, and the spouses will split the proceeds. The best part is, while you are still madly in love with your partner, you can make these decisions with the best intentions, allowing you to part ways more amicably should you no longer wish to continue in the marriage.
Once your prenup has been written, both parties should carefully review the details with their legal representatives. Then, make sure you sign the prenuptial agreement before a notary to ensure its authenticity, legality, and enforceability.
Although you may be head over heels for your soon-to-be partner, when writing your prenuptial agreement, it is not uncommon to experience some disputes. Some of the most common issues that may come up include:
Even after drafting and signing a prenuptial agreement, there may be some issues regarding the prenup's enforceability. For instance, one spouse may claim that they were pressured into signing the prenup because it may have had invalid conditions. If any information provided in the prenuptial agreement is incomplete or false, the terms may not be enforced.
Additionally, in situations where the prenuptial agreement includes terms that are grossly unfair or "unconscionable," the courts will not enforce it. In fact, according to the NC Uniform Premarital Agreement Act UPAA), certain requirements must be met for prenuptial agreements to be enforced in a court of law. The prenup will not go into effect until the couple is married, and couples have the power to revise and amend prenuptial agreements after marriage when signed by both spouses.
It is completely up to you and your partner to determine what information should be included in your prenuptial agreement. Some of the most important details to consider include:
The prenuptial agreement should be written in accordance with North Carolina law, and include any other issues you agree on as a couple should be included. However, prenuptial agreements do have limitations.
They cannot determine child custody and support rights upon the end of your marriage. These types of decisions will be made at the time of your separation and divorce, should it get to that point. A prenuptial agreement also cannot infringe on the rights of your current or future children, or get rid of either spouse's premarital debts.
The benefits of creating a prenup when you get married are undeniable. While prenuptial agreements may have previously been for the wealthy, these days, prenuptial agreements can offer open communication, peace of mind, and financial transparency throughout your marriage.
It can also help ensure you and your spouse can manage each other's marital expectations. By creating a prenuptial agreement that discusses alimony and division of your marital assets and debts in advance, you can reduce the likelihood of a particularly contentious and expensive legal battle if your marriage comes to an end.
Other situations in which having a prenuptial agreement could be particularly useful include:
Not everyone needs a valid prenuptial agreement. Many of the issues you include in a prenup can be addressed during divorce. Other issues are better reserved for postnuptial agreements. When you are unsure whether you need a prenup, it may be wise to consult an experienced prenuptial agreement attorney who can help you consider your options.
Here are some of the biggest dos and don'ts of getting a prenup in North Carolina.
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A prenuptial agreement, also commonly referred to as a premarital agreement, is a legally binding contract between two people who are planning to wed. This contract describes how the division of marital assets, property, debts, and other details will be handled if the marriage ends. Prenuptial agreements become unenforceable if the couple decides to end their engagement.
Prenuptial agreements can only be valid if:
While you are not legally obligated to have a lawyer for a prenup in North Carolina, the benefits are undeniable. Technically, you can get a prenup by having it notarized. However, if you hope to protect yourself and your best interests, it may be well-advised to hire a family law attorney to represent you.
The amount you can expect to spend on a prenup will vary widely depending on the specific circumstances of your case. Estimates can range anywhere from $800-$10,000.
Yes, both parties have the right to amend a prenup in North Carolina as long as both spouses agree to the modifications being requested.
This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.
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