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Off to a Flying Start

Filling out insurance papers is nowhere near as fun as driving that new sportscar. But no responsible vehicle owner would even pull out of the driveway unless the car was insured, even though no owner plans to be involved in a car accident. Similarly, no newlywed couple plans on getting a divorce. But it is best to be prepared with a premarital agreement, in the event that the unthinkable becomes reality.

Premarital agreements serve other purposes. Money is one of the leading causes of marital strife, and a prenuptial contract effectively removes money as a potential source of conflict. These agreements can also resolve inheritance and succession disputes in advance, so there are no questions as to who controls a trust or business in the event of divorce.

Contents of a Premarital Agreement

North Carolina law favors the use of spousal agreements whenever possible, as long as they are neither coerced nor manifestly unfair. So, a premarital agreement may cover a wide range of subjects, including:

  • Property Rights: Management and distribution rights can be applied to both marital and non-marital property.
  • Spousal Support: The amount can be limited or even eliminated altogether, often in exchange for other property considerations, like a larger share of a retirement account.
  • Testamentary Matters: Many parties make wills simultaneously with their property agreements.
  • Any Other Matter: This catch-all includes anything except that which is void as against public policy.

In practical terms, child support is about the only “off-limits” item; child custody provisions may be included, but they will be closely scrutinized. Most premarital agreements contain severability clauses, so any illegal provision is excised and the remainder of the agreement remains in force.

Challenging a Premarital Agreement

The presumption in favor of these pacts is not limitless. They can be challenged on the basis of:

  • Involuntary: In most cases, a “sign-or-else” ultimatum is insufficient to establish involuntariness. Most courts almost require physical coercion, as in, “you’re not leaving the room if you do not sign.”
  • Unconscionable: First, the division must be manifestly unequal, and 60-40 probably does not rise to that level. Second, the court examines the circumstances at the time the agreement was made.

Unconscionability also requires a showing that the challenging party did not know all financial details and had no way to obtain them.

A Case Study

Some sports fans may be familiar with the Frank and Jamie McCourt divorce, the billionaire couple that once owned the Los Angeles Dodgers.

In 2011, with the team near bankruptcy, Ms. McCourt signed a marital agreement which gave Mr. McCourt full ownership in exchange for generous financial considerations. But after a few years, a string of playoff appearances caused the franchise’s value to skyrocket. Upon their divorce, Ms. McCourt tried to have the agreement overturned as unconscionable.

The judge eventually sided with Mr. McCourt, because the agreement was not unconscionable when it was made in 2011.

Reach Out to Seasoned Lawyers

A premarital agreement helps put your marriage on a more solid foundation. For a confidential consultation with experienced family law attorneys in Charlotte, contact Remington & Dixon, PLLC.

 

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