Long ago, married women were unable to enter into contracts. Then, thankfully, came the Married Women’s Property Acts that permitted married women to make contracts with anyone in and outside of the marriage. This opened the door to the idea of contracts in marriage regardless of gender, meaning that now anyone can enter into a marriage contract whether prior to, during, or after the marriage to protect themselves and their property.
Maybe you are getting married for the first time and unsure of what to do should something less than desirable happen down the road. Maybe you are thinking about getting remarried and the falling out of your last marriage may have left a bitter taste in your mouth. Regardless, everyone can benefit from protecting your assets before you get married.
Prenuptial Agreement
You’ve more than likely heard of a prenuptial agreement, or prenup. This is a contract between two people who are planning to get married. It essentially handles the division of property should the couple ever get divorced. In North Carolina, the legislature has adopted the Uniform Premarital Agreement Act. The statute sets formal requirements for prenuptial agreements. The first requirement is that it must comply with the Statute of Frauds, meaning it must be in writing and signed by both parties.
Unlike most contracts, no consideration is required. Your future spouse is not required to receive any benefit now in order to be bound by the agreement on divorce.
Property and Beyond
A prenuptial agreement covers much more than just property. The agreement not only deals with property brought into the marriage but also acquired during the marriage. The prenuptial agreement can also detail the terms of spousal support following a separation, including the elimination of spousal support and alimony.
It can go even further. The agreement can also cover the making of a will or trust according to the agreement’s terms. This means that the agreement can be a contract to make or not make, as well as change or not change, a will or trust with respect to the new spouse. This way, couples can agree to what works best for them in the event that they separate.
Life Insurance and Changes to the Prenup
A prenuptial agreement can discuss the payment of a life insurance policy and how much the new spouse may receive. You can make decisions about the choice of law you want to apply for the agreement. That means you can agree that another state’s law will apply.
It should be noted, however, that a prenuptial agreement cannot affect child support. Spousal support is up for discussion but child support is state mandated. Therefore, you cannot negotiate for different child support amounts in the event that you have children together.
Once signed, a prenuptial agreement becomes effective upon marriage. It will govern whatever you and your family lawyer have included in its provisions. If you decide you want to amend or revoke the agreement, you will need to meet with your lawyer. You’ll have to draft another written statement with the new terms. You and your future spouse will need to both sign that agreement as well.
If you want to address any of these concerns after marrying your new spouse, new agreements may be drawn up between spouses. These will deal with property specifically. In North Carolina, spouses may enter into contracts for the purchase or sale of land between each other. And, of course, when you take out a life insurance policy you can designate the beneficiaries of the policy and how much each person will receive. It’s of course best to try to get everything right the first time to avoid this if you can.
Postnuptial
In contrast to the prenuptial agreement, the postnuptial agreement can contract over may of the same issues, with one big exception. With a postnuptial agreement, you cannot waive alimony payments. Often, this agreement is used to handle estate planning much like the will provisions of a prenuptial agreement.
For any other questions concerning pre-marital and marriage contracts, please contact your divorce lawyer. Our attorneys can assist with drafting prenuptial agreements. Contact us or call us at 919-787-6668 to schedule an appointment.
