A prenuptial agreement or premarital agreement (sometimes called a “prenup”) is a contract entered into by prospective spouses before marriage that addresses rights and obligations of the spouses after marriage. In North Carolina, prenuptial agreements are subject to the provisions of a specific state law.
A statute named the Uniform Premarital Agreement Act governs prenuptial agreements in North Carolina. The law includes provisions covering execution, effectiveness, contents, and enforcement. If an agreement does not satisfy the requirements of the law, it may be void and unenforceable.
A prenuptial agreement must be in writing and signed by both prospective spouses prior to marriage. The terms become effective following the marriage. After a prenuptial agreement goes into effect, the two spouses may amend or revoke the terms only by a written agreement signed by both spouses.
The law specifies that the contract may include provisions relating to:
The statute specifically states that a prenuptial agreement cannot adversely affect a child’s right to support.
With regard to spousal support, the law provides a limitation. If provisions in the agreement would cause a spouse to be eligible for public assistance on separation or dissolution of the marriage, a court may require the other spouse to provide support to the extent necessary to avoid eligibility.
The Uniform Act sets forth two reasons that a prenuptial agreement may be unenforceable:
The issue of unconscionability is a matter of law determined by the court. The statute provides that the spouse claiming that an agreement is unconscionable must show that:
Premarital agreements enable spouses to protect separate property owned prior to the marriage. The agreement establishes terms for dividing property and financial obligations in the event of death or the end of the marriage.
Many people think that a couple should consider a prenuptial agreement only if a prospective spouse owns considerable property or has significant income. While premarital agreements often do address that situation, there are other circumstances when a premarital agreement may make sense, including times when one or both spouses have:
A premarital agreement may also be appropriate if a prospective spouse plans to relinquish a successful profession or career after the marriage.
An agreement prior to marriage can benefit both spouses and resolve issues that may cause problems in a marriage if not addressed beforehand. A prenuptial agreement also necessitates transparency about property and debts before the marriage, since a court could declare the agreement void in the absence of full disclosure.
Prenuptial agreements are not the right choice for everyone. Each couple needs to decide whether a prenuptial agreement is the right choice for them and their circumstances. If you have questions about premarital agreements, the best first step to take is consulting with an attorney experienced in writing and counseling clients about prenuptial agreements.
In theory, you could write your own prenuptial agreement — or, you could use a form from a Do-It-Yourself (DIY) service. As with any legal document, if you take either of those approaches, you run substantial risks that your agreement or some of its provisions may not be enforceable under North Carolina law.
One important point regarding prenuptial agreements: If a couple considers creating a premarital agreement, each prospective spouse should consult with his or her own attorney. Each person has different and separate interests to protect. It is not appropriate (and may even be unethical) for an attorney to advise both prospective spouses about a premarital agreement.
Our domestic and family law attorneys at the Twiford Law Firm are here to help with matters relating to North Carolina premarital agreements, as well as the full range of family law matters. With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina, including the Outer Banks. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.