Postnuptial Agreements

Divorce can be one of the most difficult events in a person’s life, and it can be even more difficult when there are children involved. Contracting for the financial and other details ahead of divorce can be quite helpful to a couple that later decides to part ways.

Many people have likely heard of prenuptial agreements, also referred to as “prenups,” as well as a settlement or separation agreement. Prenups are entered into by a couple prior to getting married. There exists, however, a third type of contract under North Carolina law that allows spouses to settle the distribution of their marital debts and assets in a divorce. This document is known as a postnuptial agreement.

As of 2013, postnuptial agreements have become much more appealing for those living in Waxhaw and other parts of Union County North Carolina who did not enter into a prenuptial agreement and are not separated but do want to contract for spousal support in the event of divorce.

The broad category of payments from the financially stronger spouse to the other in the event of separation or divorce is referred to as spousal support. The purpose of spousal support is to reduce or eliminate the often inequitable result divorce can have on the spouse who has fewer financial resources. Alimony is a form of spousal support that is specific to financial payments made once a divorce is filed and marital assets have been divided. Temporary spousal support may be sought in the event of separation, but prior to the divorce.

Knowing the basics of what a prenuptial agreement is will help you easily understand a postnuptial agreement. Both contracts are legally binding and preemptively settle a couple’s division of assets and debts in the event that the couple divorces in the future. The main difference between a prenuptial and postnuptial agreement is when it is signed: A prenup is signed before marriage, whereas a postnup is signed after marriage but before separation or divorce. A separation or settlement agreement, on the other hand, is signed after the couple has separated or after divorce proceedings have been initiated.

If you are considering marriage in Waxhaw or anywhere else in North Carolina, it is recommended that you and your soon-to-be spouse sign a prenuptial agreement before saying “I do.” This is because the prenup exists to protect the rights of both parties entering into a legal marriage. North Carolina is an equitable distribution state when it comes to dividing up marital assets. It is important to understand that equitable does not mean equal. That being said, state law has a strong presumption that equal - or even - distribution of marital assets to both spouses is fair. In other words, absent a prenup, postnup, or separation agreement that contracts a different result, any property acquired during the marriage may be subject to being divided in half in the event of a divorce.

Before 2013, couples who were still married were prohibited to address spousal support under North Carolina law. Instead, alimony could only be agreed upon or waived in a prenuptial agreement or settlement agreement when petitioning for divorce. In other words, a postnuptial agreement could not address this issue. Additionally, if a couple drafted a separation agreement that waived spousal support yet later reconciled their relationship, the alimony waiver became invalidated. Under current law, however, changes in the statute’s language allows spouses to now waive or otherwise agree to spousal support in a postnuptial agreement. Furthermore, the waiver of spousal support between couples who agreed upon a separation agreement but later reconciled now remains valid.

It is vital to understand that even with a postnuptial agreement, many of the assets the couple acquires during the marriage will be marital property. Marital property can include several things such as stock options vested and earned during the marital relationship as well as income and retirement assets. As a result, a well-drafted postnuptial agreement must address what happens with these joint assets upon separation or divorce. Not surprisingly, all of these marital contracts - prenups, postnups, and separation agreements - require full and honest financial disclosure by both parties. They should address what will happen to earnings, bills, debts, real estate, appreciation of property, attorneys’ fees and spousal support, among other issues. The more detailed and specific the agreement, the simpler the divorce process.

Despite the numerous advantages to properly negotiated prenups or postnups, there is a negative association with these types of marital contracts. As a result, many couples do not want to enter into these types of agreements. If you and your significant other want a contract for the division of assets and spousal support in the event of a Waxhaw divorce, it is important to contact an experienced family law attorney. The lawyers at Arnold & Smith, PLLC have the skills and experience necessary to protect your interests.