The Law offices of Arnold & Smith - John Price Carr House
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Prenuptial Agreements

Prenuptial agreements are a topic that many are hesitant to discuss, let alone use themselves in their marriage. This is because society places a stigma on prenuptial agreements. The perception is that these agreements are cold-hearted and self-defeating, dooming the marriage before it even is legally valid. The truth is, however, prenuptial agreements have the ability to affect the rights of the soon-to-be spouses during marriage as well as long after they have divorced (if it comes to this). For this reason, it is critical that you contact a skilled family law attorney before you sign a Monroe Union County prenuptial agreement or if you are facing with the potential enforcement of one that you have already signed.

Prenuptial Agreements Explained

A prenuptial agreement, often referred to as a prenup, is a contract between two individuals that is signed before they enter into a legal marriage. This document governs the parties’ rights and obligations to one another during the marriage. A prenup also governs the couples’ rights and obligations to one another in the event of separation, divorce, or even death. Of note, a prenup is not effective until the parties enter into a valid legal marriage. If the couple decides not to marry, the prenup becomes null and void.

There are several reasons why a soon-to-be married couple in Monroe Union County would want to enter into a prenuptial agreement. For example, without a prenup detailing who owns what real estate, under North Carolina law any property acquired during the course of the marriage is considered joint property. In other words, in the event of a divorce and the absence of a prenup, all joint property will be divided by equitable distribution between the spouses. Monroe Union County couples often use prenup agreements to protect any individual property or solo businesses that are owned in a marriage.

What Prenuptial Agreements Address

Generally speaking, most prenuptial agreements address one or more of the following issues:

  • Each spouse’s right to manage property and other assets during the marriage;
  • Each spouse’s right to ownership of separate or marital property during the marriage;
  • Division of property in the event of separation, divorce or death;
  • Spousal support for either party in the event of separation or divorce;
  • Rights to death benefits from the other party’s insurance policies in the event of death;
  • Protection of inheritance for children from a prior relationship.

While there are many things a prenuptial agreement can address, there are limits to these documents. Some examples of what a prenup cannot do include:

  • Affect child custody for the couple’s current or future children;
  • Affect child support payments for the couple’s current of future children; and
  • Eliminate either partner’s premarital debts.
Defenses to a Prenuptial Agreement

It is important to note that a Monroe Union County prenuptial agreement must be put in writing. Likewise, prenuptial agreements must be voluntarily signed by both parties. If the parties agree to changes in the prenup, these amendments can be made in writing and signed by both parties. North Carolina, like many states in the country, follows the Uniform Premarital Agreement Act (UPAA). The UPAA provides two main ways in which someone can defend against the enforcement of a previously signed prenuptial agreement - whether the prenup was entered into voluntarily and whether the prenuptial agreement itself is unconscionable.

Involuntariness

This defense, that the agreement was not signed voluntarily, protects spouses when they may have been coerced -- directly or indirectly -- by the other spouse into signing a prenup. There are several factors that a court may consider when determining whether or not the prenup was entered into voluntarily, including:

  • Whether or not the protesting spouse consulting independent legal counsel before signing;
  • Whether or not the prenuptial agreement is fair, overall;
  • Whether or not the non-protesting spouse misrepresented anything or otherwise deceived the other spouse prior to the prenup being signed;
  • The age, mental condition, and physical condition of the protesting spouse at the time the prenup was signed;
  • Whether or not one spouse pressured the other into signing the prenup;
  • How much time elapsed between when the protesting spouse was presented with the prenup and the actual wedding.
Unconscionable

This defense can be used if one of the parties involved in the prenuptial agreement was kept in the dark about a material fact that makes the prenup so unfair it would be unconscionable. In order to invalidate a prenup based on unconscionability, an objecting spouse bears the burden of showing:

  • The other spouse failed to fully disclose his or her financial obligations, assets, or debts;
  • The protesting spouse did not choose to waive his or her right to see the other spouse’s financial information in the agreement; and
  • The protesting spouse had no ability at the time he or she signed the prenup to have adequate knowledge of the other spouse’s financial circumstances.
Family Law Attorneys

If you are in Monroe Union County, are planning to be married, and are interested in a prenuptial agreement, contact the experienced family law attorneys at Arnold & Smith, PLLC. In the same manner, if you are facing the enforcement of a prenuptial agreement in Monroe Union County, do not hesitate to call our firm. The dedicated family law attorneys at Arnold & Smith, PLLC can help explain the options available to you based on your unique situation.