There are a number of reasons why two people would agree to a premarital agreement before marriage. No one likes having to think about the prospect of getting divorced. After all, most people enter into a marriage believing that it will last forever. Even though we know today that almost half of all marriages end in divorce, few people plan for it. Failing to plan for the future just adds to the uncertainty in life, and like with most cases of planning ahead, many people who find themselves in a situation where they could use a premarital agreement regret never having one.
What Is a Premarital Agreement?
A premarital agreement is a contract signed by two persons who are soon to be married. Its role is to set forth the rules that will apply when the marriage ends, usually in divorce. It can also set forth rules that govern how the married couple will deal with their property during the marriage.
Premarital contracts are always optional when getting married. There is no law that requires anyone sign a premarital agreement before the marriage license is issued. While the law provides rules for dividing property and awarding alimony upon divorce, a premarital agreement may replace those laws when both parties consent to it.
Premarital Agreements Are Allowed Under North Carolina
There was once a time under North Carolina law that premarital agreements were not treated favorably and generally viewed with suspicion. Previous to the 1970s, many in the government, both legislative and judicial, that premarital agreements undermined the institution of marriage and encouraged divorce while leaving one spouse, usually the wife, destitute. Therefore many premarital agreements did not survive scrutiny and were struck down during this time period.
Today however is a different story. Divorces are much more common than they were in decades past and since half of marriages end in divorce, the usefulness of the premarital agreement has been recognized and enshrined under North Carolina law. North Carolina has adopted the Uniform Premarital Agreement Act which explicitly recognizes the modern view that premarital agreements do not inherently encourage divorce.
Who Needs a Premarital Agreement?
Technically no one “needs” a premarital agreement. However, there are certain people who absolutely should consider having one drawn up before entering into marriage. The only people who do not need a premarital agreement are those who are fine with how the law will divide up their assets upon the dissolution of their marriage. That encompasses very few people however.
The people who should consider having a premarital agreement before getting married are those:
- With business interests, such as their own company;
- With a substantial amount of assets;
- Who are expecting a large inheritance; and
- Who have investments that will appreciate.
The Benefits of Having a Premarital Agreement
The biggest benefit that a couple gets out of entering into a premarital agreement is avoiding a messy, drawn out, hostile divorce proceeding played out in a courtroom. If you and your spouse have entered into a well-drafted premarital agreement that addresses how all of your property will be divided up at the time of a divorce, whether or not alimony will be given to either spouse and how to treat other marital property, it can take much of the stress and time consuming courtroom drama that people have come to associate with divvying up the marital property during a divorce.
Making Sure Your Premarital Agreement Is Upheld in North Carolina Courts
If you and your future spouse do decide that a premarital agreement would be right for you two, there are important steps to take when entering into a premarital agreement to make sure that it survives scrutiny from North Carolina family courts. While the modern view of premarital agreements may be that it does not inherently contribute to divorce, there is still very much the suspicion that one spouse who holds more power or persuasion in a relationship will use a premarital agreement as a tool against the other spouse to make sure that they are destitute in the event of a divorce or to spite the other spouse in the event of a divorce.
In response to these fears, North Carolina judges tend to look at the fairness of the overall agreement, and as such, whether or not proper procedures were followed in reaching the agreement.
A premarital agreement must be entered into voluntarily and not under unreasonable pressure. Signing a premarital agreement under duress or the threat of violence is a surefire way to make sure that a premarital agreement may not be upheld.
A party entering into a premarital agreement should also have all of the information necessary to come to an informed decision to voluntarily enter into a premarital agreement. Since a premarital agreement encompasses giving up rights to another spouse’s property, if one spouse does not know what they are agreeing to give up, a voluntary decision does not mean much in this situation. Therefore financial disclosure of both couples is a good way to protect a premarital agreement from being found unfair.
The third and final step to be taken to make sure that a North Carolina premarital agreement is upheld is to have each side represented by their own attorney when negotiating the contract. It is important for each party to know and understand their rights when entering into a premarital agreement. If a party does not know their rights before signing them away, a judge may see this as being substantially unfair and refuse to uphold the agreement.
Consult an Experienced Charlotte Family Law Attorney Today to Draft Your Premarital Agreement
If you have the foresight to enter into a premarital agreement before marriage, it is important to make sure that all the necessary procedures are followed to protect yourself in the event that a judge heavily scrutinizes it or your future ex-spouse seeks to contest it. Consulting with an experienced family law attorney can make sure that your contractual wishes are respected and upheld when you need them to be. Consult with the team at Remington & Dixon, PLLC, family law attorneys in Charlotte, NC. They have years of experience in and out of the courtroom and can put it to work for you in your time of need. Contact us by phone or online to set up a consultation today.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.