Premarital Agreements in North Carolina

Do I need a premarital agreement?

We used to believe that premarital agreements were only beneficial for wealthy people or people with children from earlier marriages to protect their assets. While it is true that asset protection is still a primary reason to consider having a premarital agreement, a well crafted, comprehensive premarital agreement is also a good way to avoid the expense and conflict that sometimes arises if the marriage does not succeed by setting out your rights and obligations toward each other in advance of any potential future difficulties.

What issues can be the subject of a premarital agreement?

A premarital agreement can establish your rights and obligations with respect to the ownership and use of property during your marriage; your ability to  incur or pay off  debt without your spouse’s participation during your marriage;  to distribute property in the event of separation and divorce; to establish or waive alimony or other spousal support rights and obligations in the event of separation and divorce; to provide for or waive inheritance rights in wills and otherwise; to provide for or create rights to life insurance policies and other death benefits; and even to govern various aspects of your marital relationship, provided that your agreement does not violate a public policy or criminal statute.

What formalities are required in order to create a valid premarital agreement?

A premarital agreement merely needs to be in contemplation of an impending marriage and signed by both parties to be effective.  Both parties to a premarital agreement should disclose the nature and extent of their assets, debts, and income to each other or waive their right to have such disclosure prior to signing the agreement.   

Do we need a lawyer in connection with creating a premarital agreement?

While it is possible for you to create your own agreement, the agreement is more likely to be enforceable and to say what you want it to say if it is drafted by an attorney.  In addition, it is always helpful to be fully informed regarding what your rights and obligations would be in the absence of the agreement and how the various terms in the agreement alter those rights.  Finally, because you are dealing with very important individual rights and obligations, it is not appropriate for you and your spouse-to-be to use the same attorney.  It is unethical for an attorney to represent both parties in the negotiation and drafting of a premarital agreement.

Am I required to sign a premarital agreement if my spouse-to-be asks me to?

The question of whether or not to enter into a premarital agreement and, if so, what the terms of the agreement should be is personal to you. You cannot be compelled to sign an agreement or to give up any of your rights if you do not want to.  The manner in which you and your spouse-to-be handle the question will go a long way in setting the tone for your married life. A request from your spouse-to-be to consider a premarital agreement may or may not be a sign of lack of trust. It could come out of fear, an excess of caution, or a desire to avoid conflict later. It could arise out of a genuine interest in securing the financial future of your spouse-to–be’s children. So even though the question may put a small, if only temporary, bump in the road toward the wedding, it should not necessarily lead to canceling your wedding plans.  By talking openly about the reasons for the request and by negotiating a fair exchange of rights and obligations, you can enter into your marriage with some certainty of the outcome if the unthinkable occurs.

Am I forever bound by my signature on a premarital agreement?

In general, if you knowingly enter into a  premarital agreement, and have had the opportunity to reflect on your decision before you signed, your agreement will be enforceable.

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