How Prenuptial and Postnuptial Agreements Can Impact Divorce Agreements in North Carolina

When many people hear the term “prenup,” they think of very wealthy or very famous individuals who are trying to protect their wealth and fame before tying the knot. While that can certainly often be the case, the truth is that prenuptial and postnuptial agreements are also becoming increasingly popular among couples nationwide. There are several reasons for this and many situations in which prenuptial and postnuptial agreements can be beneficial. Let’s take a closer look at what these agreements are, why they’re used, and how they might impact divorce outcomes in North Carolina.

What Are Prenuptial and Postnuptial Agreements? 

Prenuptial Agreements 

A prenuptial agreement is a contract that is entered into prior to marriage and addresses issues that may arise during a divorce. Many people are aware that during the divorce process, a couple often meets with a mediator or attorneys to work through various issues and reach a settlement agreement. A prenuptial agreement is a similar process; it simply happens before the marriage instead of during a divorce.  

Ultimately, the parties can address any issue that is important to them in a prenuptial agreement. Often, a couple will address what will happen to certain assets that each person holds prior to the marriage. For example, one spouse may have an inheritance, a home, or an investment account of some kind that they wish to keep separate during the marriage and retain as their sole property in the event of a divorce. Agreements like this can be made in a prenuptial context. 

In other situations, parties may have children from prior marriages. They may wish to address how each party will provide for the children of their previous marriages and any children they have together, both during the marriage and in the event that the marriage ends. In still other circumstances, the parties may wish to address matters of alimony or child support preemptively. Truly, there is an extensive amount of freedom and flexibility available to parties who are working through issues like this and addressing them outside of a courtroom setting.

Postnuptial Agreements

A postnuptial agreement is similar to a prenuptial agreement, but it takes place after the parties have already been married. This may happen for any number of reasons. Circumstances may arise that didn’t exist prior to the marriage that make a postnuptial agreement that seem like a wise idea.  

In certain circumstances, one spouse may receive an inheritance or gift that they wish to retain as their separate property in the event of a divorce. Financial issues may arise, which make planning ahead for matters of spousal and child support necessary. In still other cases, one person may start a business that they wish to keep separate and apart from marital property. There can be any number of circumstances that make a postnuptial agreement a wise idea.  

Generally, postnuptial agreements are negotiated and agreed upon in the same manner as prenuptial agreements and divorce settlement agreements. The parties may choose to work with a mediator, through a collaborative law process, or one-on-one with their attorneys. Whatever the choice, the goal is ultimately to reach an agreement that provides solutions to important issues that work well for everyone involved. 

It is important to understand that once you have negotiated and entered into a prenuptial or postnuptial agreement, that agreement is binding upon both parties. This means that both parties must adhere to the terms of the agreement or risk being held in contempt if they fail to do so. If, for any reason, the parties later wish to modify the agreement, the good news is that it is possible. Going to court is not necessary if the parties can meet together and discuss what modifications may be needed. After all, life circumstances do arise that necessitate modification, and recognizing this fact and being willing to work through the process together can reduce stress for everyone involved. 

A Few Frequently Asked Questions 

While prenuptial and postnuptial agreements may seem simple at first, as with any legal matter, there are times when things can become complicated. There are often a few frequently asked questions regarding prenuptial and postnuptial agreements, particularly if a divorce does ultimately occur. Some of these questions include: 

• Can these agreements be challenged or contested? This is an understandable question to ask and one that often arises. As a general rule, if all parties agreed voluntarily and with full knowledge of the terms of the agreement and the circumstances under which it was signed, then the agreement will be upheld. In some circumstances, however, the agreement can be challenged. Specific grounds might include a lack of full and transparent financial disclosure, coercion, or a significant change in circumstances that now makes the agreement unfair or inequitable in some way. If an agreement is contested, the parties always have the opportunity to renegotiate the agreement independently and reach new terms. If they cannot do so, however, then it will be up to a court to make the decision. 

• Are there any terms of these agreements that typically affect the divorce process itself? Yes. Various clauses included in prenuptial and postnuptial agreements can impact how they are ultimately enforced if and when a divorce occurs. Some of these clauses may include:  

• • Sunset clauses: Sunset clauses establish expiration dates for a prenuptial or postnuptial agreement, after which the agreement becomes invalid. If the agreement expires before the date a spouse files for divorce, it may not be enforceable. 

• • Debt responsibility clauses: These particular clauses address how debt will be handled in the event of a divorce. Generally, a court will enforce those clauses if they are clear and if both parties had full clarity with regard to each other’s debts at the time of signing. If this is not the case, however, a party may attempt to challenge such a clause in the event of a divorce.  

• • Spousal support waivers: These are clauses that waive the right to any sort of spousal support in the event of a divorce. While these clauses will generally be upheld, courts typically will scrutinize them carefully to ensure that they are fair and do not leave one spouse in extreme financial hardship. If this is the case, the court may make modifications to the agreement as it believes necessary.  

• • Provisions regarding distribution of assets: The parties may wish to be very specific regarding which assets are to be considered marital property and distributed equitably upon divorce, and which are to remain separate property. Generally, absent any evidence that these provisions were agreed to under fraudulent terms or that they are extremely inequitable, courts will uphold these provisions. 

• • Provisions regarding child support and custody: As with other provisions, a court will usually uphold the agreement of a couple with regard to child-related issues, unless circumstances have arisen after entry into the agreement that warrant modification, or unless the agreement was obtained under duress or coercion.
    
• Will infidelity nullify a prenuptial or postnuptial agreement? Generally, various behaviors and types of misconduct, including cheating, will not nullify a prenuptial agreement unless the agreement specifically states otherwise. Indeed, some agreements do contain what is often known as a “lifestyle” clause that penalizes those who commit infidelity by requiring them to pay a certain amount of money to the other spouse. These clauses are somewhat uncommon, however, because infidelity is understandably a difficult and uncomfortable topic to bring up or even consider before a marriage.
  

While we hope the answers to these questions are helpful, they are, of course, only a few of many that you may have. Depending on your particular circumstances, you may have many things to discuss regarding these types of agreements and the divorce process itself. If so, we’re here to help.

CALL THE LAW OFFICE OF DUSTIN MCCRARY TODAY 

At The Law Office of Dustin McCrary, we understand every aspect of divorce law – because divorce is all we do. We don’t dabble in divorce work part-time like some firms do. Instead, divorce is our entire focus. This is because we believe our clients deserve nothing less than a legal team on their side that knows and understands every aspect of divorce law and will work tirelessly to help them achieve the best possible resolutions to the issues they face. Divorce can be very difficult, but it can lead to a better and brighter chapter ahead – and we’re here to help you get there. If you’re ready to take the first step today, give us a call. We look forward to helping you soon.