July 27, 2020
Pre-nupital agreements are becoming quite common for couples who have been married for a second, third or maybe more times in order to preserve their property for their children born from other mariages and so forth. But how does a "pre-nupt" work? First you have to know what a "pre-nupt" is. Pre-nuptial (aka premarital) agreements are contracts between an engaged couple setting forth what will happen to their property, income and earnings upon divorce or death. This contract only becomes effective upon marriage. If the couple never marries, there is no binding contract. According to the NCGS § 52B-3, the agreement has to be in writing and signed by the couple. This agreement can be amended or revoked after the marriage, but any amendments or revocations must be in writing and signed by both parties.
You can accomplish many things with a pre-nuptial agreement, and here is a list of what they are under NCGS § 52B-4:
1. Keeping separate property separate. If you read my blog about Equitable Distribution you will be familiar with the term "mixed properties" which involves both a separate and marital component. You will avoid this by designating how a property will be treated upon divorce.
2. How to divide assets acquired during the marriage. For example, you can agree only properties purchased from a joint account during the marriage will be considered marital and divided equally.
3. How to pay joint expenses. You can agree that you will be 100% responsible for all joint expenses and in return the other spouse will waive the right to alimony.
4. When to pay alimony/spousal support and duration. Your agreement can specify the amount of alimony and duration, or your agreement can eliminate spousal support all together.
5. How to divide death benefits, decide issues of inheritance or the making of a trust or will to carry out the terms of the "pre-nupt."
6. How to divide retirement pensions.
As you can see "prenupts" can cover a wide range of topics, however, the law expressly prohibits waiving the right to child support. Prenuptial agreements can also be found unenforceable if the terms are unclear, and/or if there is fraud, coercion, non-disclosure of assets, etc. Therefore, careful drafting, full disclosure of assets and thoughtful planning are essential.