Pre and Post Nuptial - Plumides, Romano & Johnson, pc

PREMARITAL AGREEMENTS

Premarital Agreements are agreements that parties enter into prior to marriage where the parties determine how issues arising from the marriage will be resolved in the event of separation, divorce, death or the occurrence/nonoccurrence of any other event.

In a Premarital Agreement, parties often set forth how property will be divided in the event of a separation, divorce or death and how alimony issues will be resolved (elimination, modification or otherwise) in the event of a separation or divorce. Premarital Agreements must be in writing, signed before a certifying officer and must not be inconsistent with public policy. A Premarital Agreement becomes effective upon the prospective marriage actually taking place.

UNIFORM PREMARITAL AGREEMENT ACT

The Uniform Premarital Agreement Act governs Premarital Agreements in North Carolina. The Uniform Premarital Agreement Act defines a Premarital Agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.”

Oftentimes a Premarital Agreement will cover the following areas pursuant to N.C.G.S. § 50B-4

The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever situated;
The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign….or otherwise manage and control property;
The disposition of property upon separation, death or the occurrence or nonoccurrence of any other event;
The modification or elimination of spousal support;
The making of a will, trust or other arrangement to carry out the provisions of the agreement;
The ownership rights in and disposition of the death benefit from a life insurance policy;
The choice of law governing the construction of the agreement; and
Any other matters including personal rights and obligations that are not in violation of public policy or a criminal statute.

POSTNUPTIAL AGREEMENTS

Postnuptial Agreements are agreements entered into after the date of marriage but prior to the date of separation. A postnuptial agreement, like a separation agreement, may be entered into provided said agreement is not inconsistent with public policy. A Postnuptial Agreement, like premarital and separation agreements, shall be legal, valid, and binding in all respects provided that the agreement is in writing and acknowledged by both parties before a “certifying officer.”

Prenuptial agreements and postnuptial agreements can help avoid costly & contentious divorces

SEPERATION AGREEMENTS

Separation and Property Settlement Agreements

In North Carolina, individuals may enter into a Separation Agreement provided said agreement is not inconsistent with public policy. A properly prepared agreement shall be legal, valid and binding in all respects provided that the separation agreement is in writing and acknowledged by both parties before a “certifying officer” as defined in N.C.G.S. §52-10(b).

PRENUPTIAL, SEPARATION & POSTNUPTIAL FAQS

Will a court enforce a postnuptial agreement?

As longs as certain conditions are met such as if it is consistent with public policy, signed by both parties and notarized.

Who is considered a certified officer?

A certifying offer can be a notary public, judge, or court clerk.

What invalidates a postnuptial agreement?

There are a number of factors; a few are if either party signed under duress or coercion or if a party is found to be hiding assets.

How to get legally separated?

A separation agreement or other written document is not required to be legally separated in North Carolina. To be considered separated from your spouse, you need to be living in different homes, and at least one of you needs to intend that the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).

Do I have to file my separation agreement with the courts?

No. However, you can choose to incorporate your agreement into a court order if you choose. Separation Agreements are typically legal binding agreements between the parties, which are of a private nature, which is to say that if you do not want to make the agreement part of the public record by filing it with the courts, you do not have to.

What is a separation agreement?

A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.

Is a separation agreement required?

No. A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order. Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.

How do I get a separation agreement?

Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family.

What are the requirements for a separation agreement to be valid?

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.

Can a separation agreement include decisions about child custody and child support?

Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.

What is postseparation support?

“Postseparation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.

Can I avoid litigation with a prenuptial agreement?

A successful prenuptial agreement can help speed up litigation or possibly even avoid it altogether in the event of a divorce. However, there is no guarantee that a prenup will avoid litigation at divorce.

Should all finances be disclosed prior to entering a prenuptial agreement?

In general, yes. It is better practice that each party discloses his/her finances to the other (including all income, assets and debts) as the prenuptial agreement can be challenged in court if it later revealed that one of the parties did not disclose or hid assets at the time the agreement was created and that said disclosures were not waived. In the interests of full disclosure, it is smart practice to attach financial statements detailing the financial situation of each party.

What requirements must be met for a prenuptial agreement to be held valid and legally enforceable?

Usually, for a prenuptial agreement to be held valid and enforceable by a court it must comply with the following requirements: The agreement must be in writing, signed and notarized. There cannot be any evidence of duress, coercion, or undue influence when preparing and finalizing a prenuptial agreement and the provisions between the parties must be legally permissible. It is recommended that each party retain their own lawyer to ensure they receive independent legal advice regarding a prenuptial agreement.

What is property?

Property is anything that is owned. Property is often divided into two (2) types – “real property” which is any interest in land or real estate and “personal property” (sometimes referred to as “personality”) which includes everything else – savings accounts, stocks and bonds, real estate, vehicles, valuable antiques – these are all examples of property.

Can I restrict or waive child support in a prenuptial agreement?

Generally, you cannot adversely affect or waive any rights of a child to support in a prenuptial agreement. The parties can set their intentions in the prenuptial agreement which the courts can consider, but they are not bound by such provisions as the needs of the children are paramount.

Do I need to file my prenuptial agreement anywhere?

No, you do not need to file your prenuptial agreement anywhere. Just make sure that you keep a signed copy or copies in a safe, secure place.

Can Same-Sex Couples get a Prenuptial Agreement?

Absolutely. We encourage both same-sex and opposite-sex couples to consider entering into a prenuptial agreement before tying the knot.

Does a Prenuptial Agreement mean I won’t get Alimony?

No. A prenuptial agreement can provide for some guaranteed amount of alimony, or none at all.

Are Prenuptial Agreements Enforceable?

Yes. Prenuptial agreements will be enforceable if they are prepared and executed in accordance with the applicable law. Most states have adopted the Uniform Premarital Agreement Act, making prenups valid and enforceable if done correctly and in compliance with the law.

What is a postnuptial agreement?

A postnuptial agreement is a contract a couple signs after they are married. Similar to a prenup it addresses assets, separate property, community property, who is responsible for debts, and who is responsible for alimony and for how long.

Why would someone sign a postnuptial agreement?

Couples may have a variety of reasons to sign a postnuptial agreement, from protecting an inheritance or providing for a stay-at-home spouse to assigning ownership of a business, repaying a parental gift, or salvaging a marriage because one spouse cheated.

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Prenuptial & Postnuptial Agreements

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