Taking the Concern of Money and Property out of your Marriage: Why you should consider a Pre-nup and Post-nup Agreement
APRIL 7, 2021
You have found the love of your life and are planning your marriage (or you are currently married to the love of your life – congratulations – in which case you may need a post-nuptial agreement as described below). While you plan for your life ahead, including the wedding, you might be thinking about all the “stuff” you both have and how you would like to protect it … just in case. That’s what a pre-nup agreement does, right?
Most people believe that a pre-nup agreement is a way to “protect” what they currently have now. And couples who are wealthy are the only ones who need one. No need for regular people to get a pre-nup.
It is true that your pre-nuptial agreement can designate what happens to the property each of you brings into the marriage. These are usually referred to as “Simple” prenups – where individuals want to treat what they own prior to marriage as separate property and then anything that happens during the marriage is marital property or separate property. This is a simple agreement because the agreement clearly delineates that and then you are pretty much done.
However, you might be surprised to learn that “prenuptial” agreements can dictate what will happen with property acquired during the marriage and how that property acquired during the marriage will be handled in the event of a divorce. Prenuptial agreements also allow you and your spouse to come up with other agreements as to how to handle property acquired during the marriage. This type of prenuptial agreement can be referred to as a “Complex” prenuptial agreement. These “Complex” pre-nup agreements can include the following:
Definition of which assets and debts acquired during marriage are separate property belonging to only one spouse
Allow one spouse to have control of specific property
Define which spouses’ property rights in case of Death, Separation or Divorce
Define Spousal Support / alimony if the issue arises
Impose specific duties and obligations of individual spouses during the marriage
Define individual spouse’s child care requirements
Pre-nup Agreement 101:
Before we look at some specific areas that can be included in a pre-nup agreement, let’s review the basics:
Pre-nup agreements must be:
In writing and executed before the marriage.
Fair and reasonable and based on full disclosure by both parties of all assets and liabilities. (although, full disclosure can potentially be waived.)
One lawyer cannot represent both spouses. Each spouse should have their own attorney to prepare and review the documents and answer all questions before signing.
So, we have been discussing pre-nup agreements, but what is a post-nup agreement and how are they different? The only key difference is that, as the name suggests, the agreement is entered into by the couple AFTER they get married.
Different Areas a Pre-nup can cover:
The idea that what you owned prior to marriage is “separate property” and what you acquired during the marriage is “marital property” is established by statute in North Carolina. So, in theory, when potential clients ask for a simple prenup, they are requesting “protections” that are, for the most part, already provided by statute.
But a “complex” prenup will help with property acquired during the marriage – such as your 401k. If you have $100,000 in your 401(k) before you get married that $100,000 remains your separate property. However, as you continue to contribute to that 401(k) from the date of your marriage onward, all contributions, plus passive gains and losses becomes marital property. With a pre-nup agreement, a spouse can dictate what happens to their retirement account after the date of marriage.
Once you get married, the paycheck that you earn during the marriage is marital and not separate. So, when you take your paycheck (that is in your sole name) and put it into a savings account that is in your sole name, those funds in that savings account then become marital property. However, in a prenup, you can dictate that those funds remain separate.
What most of us do not understand is that it does not matter whose name an asset is in – if my retirement account or paycheck and savings account are in my name before marriage and it remains in my name after marriage, then it is theirs. That is not the case.
A complex prenup will start to change what the statutes provide for and that’s why they are more “complex.”
Prenups also can determine how debt is handled. Most people tend to think that prenups only deal with assets but they can also detail how post marriage debt is handled.
Another important aspect about prenups is alimony. Typically, male clients are concerned about spousal support and more specifically the waiver of spousal support. This can be included in a pre-nup agreement! However, clients need to be careful with waiving spousal support in prenups because a waiver of spousal support may not always be enforced.
For example, a husband and wife (in their early 20’s when they get married) sign a prenup where they waive alimony. Then the couple have children and the one of the spouses forgoes a career to stay at home and raise the children for the next 20 years. During that time, if the other spouse becomes successful and now earns a substantial salary, then files for divorce, the stay at home spouse’s waiver of alimony may not be enforced. The State will look hard at the agreement and determine if it is equitable to hold a spouse to something they agreed to in their 20’s when they had no idea they would have been a stay at home parent for the next 20 years with no career and no reasonable way to earn income or get back into the workforce after being a stay at home parent. And if this causes the spouse to become dependent upon state assistance, the State is more likely to not enforce this provision of the pre-nup.
Pre-nup agreements can be applicable for any couple who are about to get married, no matter how much money they have.
Pre-nup agreements can be “simple” – covering the assets of the couples have before they get married.
Pre-nup agreements can be “complicated” and cover multiple situations that couples want to legally designate.
Our attorneys understand that a pre-nup agreement is as individual as the couple creating it and are ready to provide you the agreement you need.
If you are interested in getting a pre-nup agreement, contact our office at 704-333-9900.