Are you getting a divorce in Charlotte or elsewhere in Mecklenburg County? Do you have a prenuptial agreement? If so, the prenup is going to have a significant impact on your case—specifically on the property division. At Remington & Dixon, PLLC, we have extensive experience with property division in divorce. Here, our Charlotte prenuptial agreement lawyer explains how a prenup can impact property division in a divorce in North Carolina.
Know the Basics: Division of Property in Divorce in North Carolina
As a starting point, you must understand how property division works. Under North Carolina law (G.S. § 50-20), an equitable distribution standard is used to split property in a divorce. Marital property is divided fairly, but not necessarily equally, based on factors like the length of the marriage, each spouse’s income, contributions to the marriage, and needs for future support.
Marital property includes assets acquired during the marriage. On the other hand, separate property—such as pre-marital assets or inheritance—typically remains with the original owner.
Note: The equitable distribution law also applies to debt. In North Carolina, marital debt is divided equitably. Separate debt remains the responsibility of each spouse.
What is a Prenuptial Agreement?
A prenuptial agreement (prenup) is a legally binding contract made between two individuals before marriage, outlining how assets, debts, and other financial matters will be handled in the event of divorce. It is designed to provide clarity and protect the spouse by addressing potential disputes ahead of time. Notably, prenups are enforceable in our state as long as they comply with certain legal requirements. North Carolina is a party to the Uniform Premarital Agreement Act. Here are four key elements of our state’s prenuptial agreement requirements.
- The Agreement Must Be in Writing: North Carolina does not recognize oral prenups. A prenuptial agreement must be in writing and signed by both parties and notarized to be enforceable.
- Full Disclosure By Both Parties: In North Carolina, both parties to a prenup must make full, comprehensive asset disclosures to the other before the agreement is signed.
- Voluntary Agreement (No Duress): Both parties must enter into the prenup fully voluntarily. There cannot be coercion, duress, or undue influence.
- Fair and Reasonable Terms: The terms of the agreement must be fair and reasonable at the time of the signing. North Carolina courts may invalidate an unfair agreement.
How a Prenup Can Impact Divorce in North Carolina Property Division
If you and your spouse signed a prenuptial agreement before your marriage—or a postnuptial agreement after you already tied the knot—it could have a big impact on your divorce case. You must be well-prepared. Here is how a prenuptial agreement can affect the divorce:
- A Legally Valid Prenup Will Set the Terms for Property Division: A prenup will set the terms for the property (and debt) distribution of your North Carolina divorce case. By establishing terms in advance, a prenup can override the default rules of equitable distribution under state law. In other words, instead of the court determining what constitutes marital and separate property, the terms of the prenup will guide the division. In North Carolina, courts generally honor prenups.
- A Prenup Can Keep Specified Property Separate: A prenuptial agreement can also keep certain properties separate. As an example, imagine that a spouse wants to protect a specific form of inheritance, the company that they own and operate, or some pre-marital investments from being divided during a divorce. In North Carolina, without a valid prenup, these specific assets could be subject to equitable distribution. A prenup can provide protection. Indeed, by clearly outlining which assets remain separate, a prenup prevents property from being treated as marital property that is subject to equitable distribution.
- A Prenup Can Pre-Determine How Marital Property is Split: Finally, in some cases, a prenup may pre-determine how marital property is divided in a divorce. Instead of leaving the decision to the court, a prenup can establish specific terms, such as percentages of ownership or which spouse retains certain assets. For example, a couple may decide to write a provision into a prenup that guarantees that all marital property is subject to a 50/50 distribution if there is a divorce. An even split of marital property is not guaranteed by law in North Carolina.
Can a Prenup Be Challenged in North Carolina?
Yes. The legal validity of a prenuptial agreement in North Carolina can be challenged. To be enforceable, the agreement must meet all of the requirements of state law—from being in writing to being signed voluntarily after full financial disclosures were made by each spouse. If a prenup is successfully challenged, part or even all of the agreement may be set aside by the court.
How Our Charlotte Divorce Attorney Can Help You Navigate Divorce With a Prenup
Going through a divorce can be challenging. A prenuptial agreement can sometimes make the process easy—but that is not always the case, particularly if a dispute has arisen regarding the terms or enforceability of the agreement. Jennifer Dixon is a North Carolina divorce lawyer with extensive experience handling prenups. Attorney Dixon can review your prenup, explain your rights and options, and help you develop a strategy to get the best possible outcome in your case.
Contact Our Charlotte, NC Prenuptial Agreement Lawyer for a Confidential Consultation
At Remington & Dixon, PLLC, our Charlotte family attorney has extensive experience handling prenuptial agreements, including divorce cases. Professional support is available. If you have any specific questions or concerns about prenups and divorce, we are here as a resource. Contact us today to arrange your fully confidential initial case review. With an office in Charlotte, we provide family & divorce representation in Mecklenburg County and throughout the surrounding area.
