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There are many misconceptions and misinformation about prenuptial agreements. Assumptions that they were only for the wealthy or that they come from a lack of trust, permeated mainstream wedding culture and made many couples averse to the concept. However, in recent years, prenuptial agreements have grown in popularity. So, what is a marriage prenup?
As people become more accustomed to what a prenup is and why it can be such a good idea, couples from every income bracket are asking their family lawyers to illuminate some of the finer points before drafting a prenup of their own. If you’re considering creating yours, here’s what you need to know about prenuptial agreements or premarital agreements in North Carolina.
What Is a Prenuptial Agreement
A marriage prenup, also known as a prenuptial agreement or premarital agreement, is a contract entered into by two people who are going to be married which outlines the division of assets in the event of the dissolution of the marriage, either by divorce or death.
What to Include In a Marriage Prenup
Couples are often surprised to find out just how comprehensive a prenup can be. It's no wonder why so many people wonder, "What is a marriage prenup?" Here’s what can be protected by a premarital agreement.
Property Rights and Maintenance
The difference between marital property and separate property may seem clear. When defined simply, separate property is any that you acquired before the marriage, while marital is accumulated during the marriage. However, the increase in value of your sole property, if it occurs during the marriage, can then be considered marital property. This is true of inheritances, homes, businesses, and other assets.
For this reason, the property you accrue both before and during your marriage can be the topic of major convention or uncomfortable conversations in the event of a divorce. Outlining what will remain separate, what will be marital property, and how it will be divided after a divorce in a prenup can help you avoid tension later.
If one spouse did not earn income during the marriage or made significantly less, spousal support may be ordered by the court and decided based on the average income of the higher-earning spouse. When it is determined by this third party, though, there is a lot of room for one or both partners to be upset with the outcome.
Predetermined the amount of spousal support that will be provided in the event of a spilt can help ensure that both parties feel the division is fair.
In most cases, one spouse's inheritance will count as separate property and will not be divided as marital property in a divorce. But as with everything, there are of course exceptions to the rule.
For instance, if you have inherited something like a business or home, and your partner has helped to increase the value of that particular thing, there is a chance that a court could decide that this portion of the inheritance is marital property. If you want to ensure that you will maintain sole ownership of the asset or finances, you’ll want to make it clear that you and your partner agree to that in a prenup.
On the other hand, if you do want your inheritance to be split with your spouse, you can state that in the marriage prenup as well.
A prenuptial can also cover life insurance, joint property maintenance, pet ownership, debt, and the state law that will govern the division of assets, along with really almost anything else you can think of. There are, of course, a few exceptions to that rule.
What Cannot be Included in a Marriage Prenup?
So, what can’t be included in a marriage prenup? The most important thing that cannot be determined by these agreements is anything regarding the children, from custody to child support—but there are a few other things you’ll have to leave out.
Child Custody and Visitation
North Carolina law prioritizes the safety and well-being of the child in the event of a spousal separation. That means child visitation and custody cannot be predetermined in a prenuptial agreement, as it has to take into account the “best interest of the child” at the time of the separation.
A court will evaluate the financial, emotional, and psychological state of each party in case of a divorce to determine what is best.
Similarly, child support payments can not be determined prior to marriage in a prenup. The “best interest of the child” standard again rules here; it is up to the court to decide the arrangement that will allow the child the necessary financial support.
Division of Household Chores
Personal choices like the division of chores within the household should not be outlined in the prenup. These cannot be legally enforced, as marriage prenup is designed to only address financial matters within the marriage.
This probably won’t come as a surprise, but a prenup cannot include reference to anything illegal. If it does, it may call the legitimacy of the entire document into question.
What Happens Without a Marriage Prenup?
If you decide not to draft up and submit a prenup before your marriage, you must then rely on your state’s unique laws to determine the distribution of your assets in the event of a divorce.
North Carolina is what’s known as an equitable distribution state. This means that unless a prenup is in place that outlines a different plan for allocation, a court will decide how to most fairly distribute assets and finances according to factors like the length of the marriage, each spouse's contribution throughout the course of the marriage, and each parties earning capacity.
Who Should Get a Prenup?
Anyone who wants a prenup can and should get one, but it is especially helpful in any of the following circumstances:
If You Have Children from Previous Marriages
To avoid any confusion or conflict over which of your assets will go to your spouse and which will go to any children you had in a previous relationship or marriage, it can be helpful to outline your exact wishes in a prenup. This can also prevent the surviving spouse from claiming the majority of the assets to be inherited, leaving the children with little or nothing.
One or Both of You Have Significant Debts
You wouldn’t want to be left bearing the burden of your partner's debts in the event of death or divorce, so make sure to clearly state the specifics of the amount owed, who it is owed by, who will be responsible for paying it during the marriage, and who will be responsible for it in case of a separation.
One or Both of You Own a Business
If one of you started a business before the wedding, you may think this is clearly separate, not marital property. However, if the value of the business increases during the marriage it could be argued that your partner's contributions helped with its growth, and so both parties are entitled to some portion.
If you both have equal ownership of a business, outlining how it will be allocated and prohibiting the sale or dissolution of the business in the event of divorce can prevent complicated court cases.
There Are Significant Assets Involved
If you and your partner are coming to the marriage with property, investment portfolios, savings accounts, retirement accounts, or any other major assets, it may be a good idea to clearly communicate all of these and what you would like to protect.
How to Draft a Premarital Agreement?
In North Carolina, the state allows you to draft your own prenuptial agreement, just as long as it is signed and notarized. Still, many experts recommend having your separate lawyers help with the creation of your marriage prenup.
This is because complicated legal terms and financial details may be confused or overlooked without the guidance of a legal professional. This may even lead to some of the details of your marriage prenup being inadmissible in court should a divorce happen.
Contact a Raleigh Family Lawyer to Draft a Prenuptial Agreement
The Doyle Law Group in Raleigh specializes in divorce and family law, including hundreds of cases in which prenuptial agreements have paid off for both members of a marriage after a split.
Contact us today for guidance in drawing up your own prenuptial agreement, so you and your future spouse can enter the next stage of your life with transparency, communication, and respect.
While we are located in Pinehurst, we serve residents of Raleigh, Fayetteville, Sanford, Gastonia, Matthews, Concord, and surrounding areas in North Carolina. Call us at (919) 301-8843 or complete the online contact form below to discuss your options and schedule a consultation.