Prenuptial agreements -- also called premarital agreements, ante-nuptial agreements, or "prenups" -- are written private contracts between two people who are about to marry. These agreements set the terms regarding matters such as: possession and control of assets, treatment of future earnings and debt, control of property, and the potential division of property and spousal support if the marriage is later dissolved. These agreements are more common if either or both parties have substantial assets, children from a prior marriage, anticipate inheritances of a substantial nature, high incomes, or have previously been through a contested divorce, and want to have potential issues addressed up front.
No one goes into a marriage believing that it will fail, but the fact is more than 50% of couples in the United States do get divorced.
Getting divorced can be expensive, and a valid prenuptial agreement can save you considerable time, money, and stress. Furthermore, prenuptial agreements give you the opportunity to make arrangements for what you think is fair in the event the marriage fails, while you still love each other, and communication between you is at its strongest and most productive. Typically, at the beginning of your marriage, your head is clear, as opposed to full of the negative emotions and confusion that often surround the dissolution of a marriage, and you are more likely to consider and communicate about your true intentions and expectations surrounding the marital relationship, entitlements, and obligations.
Prenuptial Agreements are valid in all 50 states and the District of Columbia. At least 26 states, including North Carolina, have enacted a variation of the Uniform Premarital Agreement Act (UPAA) which encourages the enforcement of prenuptial agreements.
PRENUPTIAL AGREEMENT FAQs
What is a prenuptial agreement?
A prenuptial agreement (prenup) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns as well as any debts, and typically specifies what each person's property rights and spousal support rights will be both during and after the marriage if there is a divorce.
Do I need an attorney to draft or review my prenuptial agreement with me?
Both you and your fiancé should each hire an attorney to individually represent you in the drafting and review of your prenuptial agreement, although it is not required that both parties be represented. An experienced family law attorney can help you define your short-term and long-term goals in reaching an agreement with your fiancé.
Can payment of spousal support (alimony) be waived under the terms of my prenuptial agreement?
Yes, spousal support may be waived under the terms of a prenuptial agreement. However, under North Carolina law, state courts will ignore a spousal support waiver in a prenuptial agreement if the court believes that the agreement was unfair to the spouse who waived his or her right to spousal support.
I do not have a lot of money or property going into this marriage. Do I really need a prenuptial agreement?
Prenuptial agreements are not just for the rich. While they are often used to protect the assets of the wealthy, couples of more modest means are increasingly turning to them for their own purposes. For example, a marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can be sure to pass on certain property to their children. Without a pre-nuptial agreement, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.
Additionally, negotiating a prenuptial agreement when the relationship is intact is much more cost efficient than attempting to negotiate a settlement of marital issues when the relationship is over and both parties are experiencing negative emotions such as anger, revenge, or guilt.
What happens to my property if I do not have a prenuptial agreement?
If you do not make a prenuptial agreement, state laws will determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. In the absence of a prenuptial agreement which states otherwise, a spouse usually has the right to:
• share ownership of property acquired during marriage, with the expectation that the property will be divided between the spouses in the event of a divorce or at death;
• incur debts during marriage that the other spouse may be responsible for;
• share in the management and control of any marital or community property, sometimes including the right to sell it or give it away; and
• collect spousal support from the other (if applicable) upon separation.
Isn’t it true that prenuptial agreements are usually found to be invalid by the Court?
There is a popular notion that prenuptial agreements will not hold up in court, but this is not true. A properly written and executed prenuptial agreement is enforceable, and often saves couples immeasurable time, money, and stress in the event their relationship ends.
However, despite their general enforceability, a prenuptial agreement can be set aside for fraud, duress, failure to disclose, unfairness, and failure to be adequately represented. Both sides should have independent legal counsel to advise them in the drafting and review of the prenuptial agreement and neither party should threaten the other (including threats to call off the wedding) or promise the other anything in exchange for signing the prenuptial agreement.
What if I don’t want my fiancé to know my finances?
Then a prenuptial agreement is not for you. By far, failure to disclose is the biggest issue that can cause prenuptial agreements to be overturned. All states require that there be full disclosure of all property, assets, and debts prior to signing the Agreement and that each spouse be fully aware of what he/she is getting and giving up. Also, if you don’t trust your fiancé to know important information about you, you should probably reexamine your reasons for wanting to get married. Prenuptial agreements are designed to facilitate fairness and disclosure, not to keep secrets from one another.
The experienced family law attorneys of Haas & Associates, P.A. will guide you through the legal process. Commitment and responsiveness to our clients' needs are our top priorities. Please contact us at 1-866-783-9669, or via our online contact form, to get more information and schedule a consultation with one of our attorneys.