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Prenuptial Agreements in North Carolina
Russell Family Law & Litigation • Jan 14, 2020
How Prenuptial Agreements in North Carolina Can Protect Your Independence
Few things are more difficult for a married couple to admit than the simple yet devastating fact that, not only are things not working, but they can’t work – and it’s time to stop trying.
Divorce can take a variety of shapes and forms and can happen to the best of people. Though you would never want or expect to get a divorce, you want to be sure that your financial and personal assets are protected as best as possible. Financial entanglements should never be an obstacle to ending a relationship that isn’t working and starting fresh.
A prenuptial agreement can be of immense help in this respect – and here’s how.
Prenup 101
For those not in the know, a prenup
is a legally-binding agreement whereby certain assets, financial and otherwise, which are held prior to a marriage – and are thus “prenuptial” in nature – are protected in the event of a divorce. When couples get a divorce, dividing up property and assets is an inevitable part of the separation process. Prenuptial agreements protect certain assets from that process by clearly delineating each party’s holdings as their own prior to marriage.
For example, if you own property prior to a marriage, under normal conditions, it may be subject to contestation and arbitration as part of a divorce proceeding. With a prenuptial agreement, however, any property you own prior to the marriage that is covered in the prenup can be spared from the divorce arbitration process.
A prenuptial agreement can also help protect partners from one another’s debts. While part of marriage is pledging to share in one another’s struggles and burdens, it is hardly fair for your money or assets to be used to pay off an ex-partner’s debts. Prenuptial agreements drafted ahead of time by family law or divorce lawyers can protect you from that possibility by marking your money and assets as solely yours.
Prenuptial agreements in North Carolina are especially favorable and important in certain situations. For example, if you own a business
or have a share in a family business, you may want to keep that asset separate in case of a divorce so as to ensure it remains yours. You don’t want to lose part of all of a business that has been in the family for decades as part of a divorce settlement.
In addition, if your partner has debts, you’ll want to make sure that you do not become financially responsible for resolving them. After all, marriage is about sharing a union of mutual love and respect, not one party being used as a cash cow to bail another out of debt trouble.
In the end, prenuptial agreements
are a means of protecting your independence and personal gains. The more successful you are in your premarital life, the more you have to protect, and thus the more attractive prenuptial agreements in North Carolina become.
What Prenups Can and Can't Protect
One of the most common sources of confusion regarding prenups is what they can and can’t protect. There are limitations
to what prenuptial agreements can do, but the protection they provide may still be broader than you might imagine. You, therefore, always want to consult
with a qualified divorce attorney
in North Carolina to ensure that you have the full picture about where you stand regarding both a prenuptial agreement and divorce in general.
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Prenuptial agreements can protect you from:
- Losing family heirlooms or control of a family business
- Losing financial assets that are solely yours prior to marriage
- Being forced to pay the debts of your spouse during or even after marriage
- Being forced to give up a disproportionate part of your wealth or assets in divorce
- Confusion regarding financial obligations to children from previous marriages
On the other hand, prenuptial agreements can’t protect you from:
- Custody battles for children to whom you and your partner are biological or adoptive parents
- Having to pay alimony for children for whom you are legally responsible in your marriage
- Disputes over who is to fulfill what role in the marriage (ie, working vs. staying at home)
In addition, prenuptial agreements cannot be used to force either party to do something that is illegal.
That last point is especially important. A prenuptial agreement that contains illegal conditions will be dismissed in court, even if other parts of it may be legally cogent and its contents vital to your financial security. It is, therefore, advisable to always have prenuptial agreements drafted by trained family law firms or a divorce attorney with experience drafting and executing prenups.
Common Points of Prenup Contention
For as relatively straightforward as the concept of protecting your premarital assets and livelihood may be, prenuptial agreements can still raise questions among couples. Some of the most common points of contention for couples looking into prenuptial agreements in North Carolina include:
- Whether both parties feel comfortable with one. Even though a prenup is legally sensible, delineating individual fiscal assets isn’t very “romantic.” That said, neither are bitter divorce battles that can sap you of hard-won financial gains, family assets, and independence.
- What assets to include in the prenuptial agreement.
- Whether the prenuptial agreement should stand indefinitely. Some couples opt for an inclusion of clauses that mark an endpoint to the prenup, at which point assets revert to a shared state of ownership. On the one hand, this can be a way to compromise on the romantic side of things and have a prenup protecting your assets in the early years of your marriage, with the assumption that if things last long enough for your prenup to expire, then you’ve truly found “The One.” On the other hand, that expiration date can also be exploited if your partner wishes to divorce, but chooses to wait until the prenup expires and your assets become fair game.
- The issue of pressure. No one can or should be pressured into legally binding contracts, including prenuptial agreements.
- The question of clarity and representation. Both parties must be clear on what is in a prenuptial agreement. They cannot be drafted solely by one party without the other’s knowledge or consent. It is, therefore, always advisable to have a divorce attorney who specializes in prenuptial agreements oversee it before you sign or commit to anything.
Done properly, prenuptial agreements can help both parties preserve their assets and independence in the event of a divorce, and beyond.
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https://www.ncleg.net/enactedlegislation/statutes/html/bysection/chapter_50/gs_50-20.html
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