Many couples who have significant assets seek pre-nuptial agreements to define and protect the rights and interests of both parties. These agreements are entered into and signed before the date of marriage.
Some people wrongly think that prenuptial agreements are only for the rich. But many people would benefit from signing a prenuptial agreement, especially those who are marrying later in life or those who have a second marriage.
A prenuptial agreement outlines the property rights and, if applicable, spousal support should separation occur between the spouses. A well-drafted pre-nuptial agreement serves to:
- protect each spouse’s assets
- avoid costly disputes in the event of a divorce
- define marital and separate property
- protect the interests of children from a previous marriage
- define future alimony, maintenance payments, and obligations
How Does a Prenuptial Agreement Help Protect a Spouse’s Assets?
North Carolina is an equitable distribution state. This means a couple must divide their marital property fairly. There is a presumption that all marital property will be divided equally. Each spouse can leave the marriage with his or her own separate property.
A prenuptial agreement can helpfully define what is marital and what is separate. This can limit disputes. It will also put the separate property beyond the reach of a judge who is dividing the marital property in a contested divorce.
Separate property is usually anything you brought into the marriage or anything you inherited or were individually given as a gift. However, things like earnings and wages are marital when earned while you are married. You could decide that each spouse’s earnings from a job will be separate property. You can also decide if the marital home will be separate or marital.
Can You Waive Alimony in a Prenuptial Agreement?
In the vast majority of cases, yes. This is one of the most common elements of many prenuptial agreements. A judge will enforce a valid waiver if it was legally obtained. A prenuptial agreement can specify how alimony will be paid, the amount that will be paid, and the length of time that payments will be made. In North Carolina, all prenuptial agreements must be voluntary.
Can You Waive Child Support?
No. Child support belongs to the children, not the parents, so parents cannot waive child support on their children’s behalf. The law is very clear on this issue. Both parents are required to pay child support in North Carolina. However, in most cases, only the non-custodial parent makes payments. The custodial parent is still liable for child support, but the law states that the parent spends the required amount of support on the child directly.
How Does a Prenuptial Agreement Protect Adult Children from a Previous Marriage?
If you die before your spouse, even if you have a will leaving your spouse nothing, he or she can take what is known as an elective share as defined by the North Carolina General Statutes.
The elective share makes it hard to disinherit a spouse. This means that assets you had earmarked for children from a previous marriage could be taken by your current husband or wife. However, you can use a prenuptial agreement to get around the elective share by having your spouse agree to a waiver of those rights.
Drafting Prenuptial Agreements the Right Way
Judges will uphold a prenuptial agreement if it was obtained legally, without coercion, threats, fraud, or misrepresentation. Each party should make full disclosure of their assets and liabilities. You should not spring the prenuptial agreement on your fiancé the day before the wedding, and you shouldn’t make threats. Ideally, each person will have their own attorney review the agreement with them and suggest changes, if necessary. To make sure your prenuptial agreement is enforceable, and that a judge will uphold it during a divorce or probate proceeding, you should work with an attorney to create yours.
At Perry, Bundy, Plyler & Long, LLP, our family law attorneys have extensive experience helping North Carolina couples understand the legal details of establishing pre-nuptial agreements that address exactly what the parties want to achieve. With our guidance, you can rely on a well-drafted pre-nuptial agreement to provide a practical solution that may prevent future conflicts or difficulties.
Contact our prenuptial agreement attorneys in Monroe, NC today. The sooner you get started on a prenuptial agreement, the better. No one is served by drafting a hasty prenup and springing it on a partner in the days before the wedding. If you call us at (704) 289-2519, you can schedule an initial consultation.
With over 110 years of combined legal experience, you can trust your case with us.
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