Can a Postnuptial Agreement Eliminate Alimony in North Carolina?

A postnuptial agreement helps spouses make important decisions about their divorce. One of the most important decisions for many spouses is alimony – also known as “spousal support” in North Carolina. Many now believe that alimony is an antiquated concept, and this is an opinion that numerous spouses in North Carolina share. Despite this shift in popular opinion, family courts in North Carolina still award alimony to spouses. Can couples mutually agree that these payments are not necessary? Can a postnuptial agreement eliminate the possibility of alimony and lessen financial burdens for spouses in the future?

What is a Postnuptial Agreement?

A postnuptial agreement is a type of contract between two spouses. It is similar to a prenuptial agreement, which is signed by couples before entering into marriage. On the other hand, a postnuptial agreement is signed by couples after they separate. In other words, this type of agreement occurs when divorce is extremely likely or inevitable.

Although postnuptial and prenuptial agreements can both help spouses make important decisions outside of court, prenups are almost always more enforceable compared to postnups. A postnup has a higher chance of being invalidated in court because it involves an outcome that is almost guaranteed to occur. On the other hand, a prenuptial agreement involves a future potential divorce that may never occur.

Postnuptial agreements may cover a range of issues, but they are most useful in the context of property division. Both prenups and postnups cannot cover issues related to child support and child custody – as these subjects involve the best interests of a third party (the child). But what about alimony?

Postnuptial Agreements and Spousal Support in North Carolina is Complicated

For many years, postnuptial agreements could not allow spouses to waive alimony in North Carolina. However, the law was eventually changed to allow these provisions under certain circumstances. Specifically, waiving spousal support in postnuptial agreements is possible for spouses who have separated and subsequently reconciled. If you have separated from your spouse and you wish to work on your relationship in the future, you can potentially settle issues regarding spousal support and property division with a postnuptial agreement. If you subsequently separate for a second time, your postnuptial agreement would theoretically remain valid – and alimony may not be necessary.

G.S. 52-10 states that: “A provision waiving, releasing, or establishing rights and obligations to post-separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation.”

Needless to say, this is a somewhat complex issue – and one that you may wish to discuss with a qualified divorce lawyer before making any major decisions about your separation or divorce.

A Separation Agreement Can Achieve the Same Thing

For most spouses, a much simpler approach involves using a separation agreement to waive alimony obligations. When spouses in North Carolina create separation agreements, they can decide how to handle their divorces without going through litigation. While it is still impossible to cover certain issues related to child support and child custody, spouses can use separation agreements to decide how they want to approach property division and spousal support.

It is possible to waive spousal support entirely in a separation agreement. You may also set a specific amount that you think is appropriate. Work with a qualified divorce lawyer to draft a separation agreement, and you will be left with a separation agreement that will likely be approved by family courts in North Carolina. In some cases, a poorly executed separation agreement will be invalidated in court. On a general note, it is best to avoid a separation agreement that leaves a spouse destitute, as family courts will likely see these contracts as “unconscionable.”

Both Spouses Must Agree to Waive Alimony

It is important to remember that waiving alimony is a mutual decision. Whether you choose to address this issue with a postnuptial agreement or a separation agreement, both spouses must agree that this is the best choice. If the “receiving” spouse is intent on receiving alimony, there is very little the other spouse can do to prevent them from pursuing it. In this situation, you might consider an agreement that offers something else of value in return for the waiver of alimony.

Find a Qualified Divorce Lawyer in North Carolina

If you have been searching for an experienced divorce lawyer in North Carolina, look no further than Arnold & Smith, PLLC. Over the years, we have helped numerous divorcing spouses in the Tar Heel State – including those who are concerned about alimony payments. We are also familiar with postnuptial agreements and their various capabilities. If you would like to discuss strategies for lowering or eliminating alimony as you approach divorce, feel free to book a consultation at your earliest convenience. Reach out today.