Category: Estate Planning
Tags: prenuptial and postnuptial agreements

Prenuptial Agreements – Not Just for Donald Trump

Posted on: November 13th, 2006
For most engaged couples, the break-up of a marriage is farthest thing from their minds during the months prior to the wedding. However, those who have experienced divorce or death of a spouse, either directly or through a family member or close friend, know how difficult and complicated it can be to sort out details such as property division and spousal support. As a result, many couples today chose to create written contracts, called premarital or prenuptial agreements, prior to marriage.
Prenuptial agreements are designed to control most financial matters between spouses. Such agreements allow couples to determine, before marriage, ownership rights to their property in the case of divorce or death. While it was once believed that such agreements induced divorce, today premarital agreements are seen to do just the opposite, by ensuring couples’ expectations are clearly defined prior to marriage.
In North Carolina prenuptial agreements are generally enforceable as long as they do not violate public policy. The agreements can contain provisions regarding future disposition of property owned separately prior to marriage, division of property obtained during marriage, amounts of alimony or post-separation support, or waiver of such support. However, a court may not enforce alimony provisions in an agreement if, for example, a spouse would be insolvent without being awarded alimony at divorce. Similarly, a court would not enforce an agreement that adversely affected a child. Even if a premarital agreement addresses child support or custody, courts will override the agreement if a child’s best interests would not be met by the predetermined provisions.
Although any couple could benefit from a premarital agreement, couples entering into second marriages may have unique concerns which such an agreement can meet. Couples may include provisions for estate planning, such that their assets go directly to children of their first marriages, at their deaths. The agreements can also ensure financial steps taken prior to the second marriage, such as college savings planning, continue after the marriage.      
In order to create a valid and enforceable prenuptial agreement, certain criteria must be met. The agreement must be signed and in writing. It is imperative that both parties fully disclose all of their financial information, including assets and debts. Since prenuptial agreements must be voluntarily made, it is best to sign the agreement several weeks before the wedding so that one spouse cannot later argue that he or she was coerced.            
If you are already married and interested in creating a similar arrangement, North Carolina courts have recognized the validity of postnuptial agreements. Agreements made after marriage can help a couple resolve property issues that arise in the future.
If you are interested in creating prenuptial or postnuptial agreement, you should consult an attorney who is familiar with North Carolina family and estates law. In order to ensure everyone’s interests are protected, you and your fiancé or spouse should use different attorneys. Discuss your concerns and objectives with your attorney so that he or she may tailor an agreement to your particular needs and situation. By taking these steps, your family will be more prepared and protected in the event of divorce or death of a spouse.
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