Premarital Agreement Lawyers in Cary
Raleigh & Wake County Attorneys
When a couple is engaged, the parties may enter into an agreement prior
to the marriage that outlines what will happen to their property and assets
in the event of their death or
divorce. This agreement is known as a pre-nuptial ("pre-nup") or premarital
In the past, only wealthy couples entered into premarital agreements. Now
they are common, especially with couples who are marrying for the second
time and who want to preserve their property for the children born to
their first marriages.
Prenuptial Agreement Laws in NC
A premarital agreement is only valid if it is in writing and signed by
both parties (the engaged couple). When the couples marry, the prenuptial
agreement takes effect and becomes a legal, binding contract. After marriage,
the premarital agreement can be amended or revoked in writing and signed
by the married couple.
Prenuptial agreements should be tailored to the unique goals of the engaged
couple. It can take weeks of discussions to carefully craft a premarital
agreement that reflects the goals of the couple. It is recommended that
each party be represented by a family law attorney.
What to Include in a Prenuptial Agreement
Premarital agreements can cover financial matters between the spouses,
such as the rights and obligations of the spouses to manage and control
certain property, and assets, debts, and other incomes. A prenuptial agreement
can also outline what will happen to certain
separate property should a divorce or death occur.
- With respect to marital property, a couple can also decide what will happen
to such property, including marital residences, joint bank accounts, and
other shared assets.
- A premarital agreement may establish the procedure for payment of joint
expenses during the marriage. For example, the parties may agree to set
up a joint household account to which each shall contribute a certain
amount based on the percentage of his or her earned income to the married
couple's combined income, or the parties may agree to pay equally their
joint expenses, or one party may agree to pay all of the joint expenses.
- Payment of the married couple's health insurance coverage and medical expenses
may be carefully mapped out in a prenuptial agreement. The agreement may
also spell out how debt shall be incurred during the marriage and how
payment on the debt shall be shared by the spouses. The method of filing
taxes during the marriage and payment of tax liability or receipt of tax
refunds can also covered in a premarital agreement.
Spousal support upon separation and divorce can be addressed in a prenuptial
agreement. The parties can waive their rights to
alimony or set the amount of alimony based upon the duration of the marriage or
the need of the dependent spouse. It should be noted, however, that a
waiver of alimony, will be dismissed by the court if one spouse is eligible
for public assistance as a result of the break-down of the marriage. In
that case the court will order the wealthier spouse to pay the amount
of spousal support needed to lift the needy spouse out of his or her eligibility
for public assistance.
- A premarital agreement can also decide issues of inheritance, the making
of a will or trust, and the deposition of retirement accounts and life
insurance death benefits upon the death of one spouse.
What Makes a Prenuptial Agreement Valid?
Premarital agreements can be challenged in court after your marriage and
held unenforceable on several grounds. For that reason, it is important
to follow certain "golden rules" in negotiating and drafting
your prenuptial agreement.
- Make full disclosure of your financial situation -- all assets, debts and
liabilities -- with your fiancé(e) and to demand full disclosure
from him (her). If either party fails to make full disclosure, it can
be grounds to set aside your prenuptial agreement as unenforceable.
- Conduct your negotiations over your premarital agreement in such a manner
as to preclude any accusation that your fiancé(e) was coerced into
signing the agreement, or that he (she) was under duress to sign, or that
you exerted "undue influence" to persuade him (her) to sign.
Allow sufficient time -- no less than 30 days -- before your wedding day
to discuss and finalize your prenuptial agreement with the advice and
counsel of family law attorneys representing you and your fiance(e).
- Follow in executing your premarital agreement is to make sure that it is
fair to you fiancé(e). Any contract, including your prenuptial
agreement, can be set aside because it is "unconscionable."
"Unconscionable" is defined as "unreasonable or not guided
by conscience." Deal fairly and openly with your fiancé(e)
in discussing and finalizing your prenuptial agreement. Anything less
will jeopardize the enforceability of your premarital agreement and, in
a larger sense, your eventual marriage.
To discuss drafting a prenup,
contact our team at (919) 348-2317.