Prenuptial Agreements in North Carolina

An overview of prenuptial agreements in North Carolina.

You don't need movie star wealth to ask for a prenuptial agreement. Premarital contracts are increasingly common among all income levels and ages. In many cases, a prenuptial agreement can increase marital happiness by providing surety in both marriage and divorce.

Different rules apply to premarital agreements depending on where you live. It's important to understand the elements and effects of a prenuptial agreement before signing one. If after reading this article you have questions, please contact a local family law attorney for advice.

• What Is a Prenuptial Agreement?
• Who Should Get a Prenuptial Agreement?
• What Does a Prenuptial Agreement Cover?
• Can a Prenuptial Agreement Resolve Child Custody and Child Support in North Carolina?
• Will a North Carolina Court Enforce My Prenuptial Agreement?

What Is a Prenuptial Agreement?

A prenuptial agreement, sometimes called a "premarital agreement" or "prenup," is a contract between two individuals with plans to get married. Prenups spell out marital rights and responsibilities as well as the division of assets upon death or divorce. A prenup won't take effect until a couple marries. In the event a couple signs a prenuptial agreement, but doesn't follow through with their wedding plans, the prenuptial agreement will become unenforceable.

Who Should Get a Prenuptial Agreement?

Not every couple needs or wants a prenup. However, premarital agreements can determine many different financial issues both during marriage and in the event of a divorce. Prenups can set limits on spending during the marriage and dictate the division of assets in the event of divorce. For example, a successful business owner may want a prenuptial agreement to keep control of a company that he or she has worked hard to build before getting married. Similarly, a wealthy individual may use a prenup to keep the ownership of his or her wealth separate, in the event of death or divorce. Prenups can also preserve the inheritance of children from a previous marriage.

Without a prenuptial agreement, property acquired by a couple during marriage becomes jointly owned and subject to division in North Carolina upon divorce.

What Does a Prenuptial Agreement Cover?

Prenuptial agreements are made in contemplation of marriage and define rights and obligations during marriage and upon divorce. Marital rights and obligations can include the right to spousal support, property ownership, debt repayment and so forth. Most agreements will resolve one or more of the following issues:

• each spouse's right to separate property or marital property, including management of the property during marriage
• property division upon separation, death, or divorce
• each spouse's right to buy, sell, transfer, spend, mortgage, or otherwise manage property and assets during marriage
• either spouse's entitlement to spousal support
• each spouse's rights to death benefits from the other's life insurance policy
• the making of a will in support of the agreement
• the state law governing the agreement, and
• any other issue the couple agrees upon (except for child custody or support).

While there are a number of issues a prenuptial agreement can cover, some limitations exist. Specifically, a prenup can't extinguish either spouse's premarital debts. Moreover, an agreement can't infringe on the rights of the couple's current or future children.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in North Carolina?

Children have a right to financial support from their parents. Parents can't eliminate or reduce a child's entitlement to support through a premarital agreement.

Likewise, child custody can't be resolved through a prenuptial contract. A child's best interests are the focus of any custody decision. Thus, prenuptial agreements can't assign custody rights and responsibilities, because a child's best interests must be assessed at the time of the parents' separation or divorce. Even when parents reach custody agreements during the divorce process, a judge will review any agreement to ensure it serves the child's needs and not the parents'.

Will a North Carolina Court Enforce My Prenuptial Agreement?

North Carolina follows the Uniform Prenuptial Agreement Act (UPAA), which establishes requirements for prenuptial agreements.

Foremost, any prenuptial agreement must be in writing and signed by the future spouses. An agreement won't take effect until the couple marries. Nevertheless, couples are free to change their minds and revise their prenuptial agreement later on. North Carolina merely requires that any amendments be in writing and signed by both spouses.

Most prenuptial agreements are upheld. However, a premarital agreement isn't enforceable if one spouse proves that:

• he or she did not sign the agreement voluntarily
• the agreement was "unconscionable" or severely unfair when it was signed because:
  • one spouse failed to fully disclose his or her financial obligations and debts
  • the defrauded spouse didn't waive the right to see the other spouse's financial information, and
  • the defrauded spouse couldn't have had adequate knowledge of the financial situation of the other spouse.

  A spouse who fails to read a prenuptial agreement before signing won't be able to set it aside simply because he or she thinks the agreement was unfair. Moreover, North Carolina courts have held that an agreement isn't unconscionable just because one spouse receives more money under its terms.

  Prenuptial agreements can be complex. It's essential to understand an agreement before signing since prenuptial agreements can affect your rights during a marriage and long after divorce. Before signing a prenuptial agreement, or if you have more questions regarding prenups, you should contact a local North Carolina family law attorney for advice.