As its name implies, a premarital agreement (also known as a prenuptial agreement) is an agreement that parties enter into before marriage. To be considered a valid premarital agreement, the agreement must be in writing and signed by both parties before the marriage. The agreement becomes effective when the parties are married. In the event the parties do not sign a premarital agreement before they are married, they cannot sign such an agreement after they are married.
However, North Carolina law allows spouses to enter into agreements before, during, or after marriage that waive or release rights and interests to property and other assets. Spouses who are married can enter into a written contract called a postnuptial agreement (also known as a postmarital agreement) that provides some of the benefits of a premarital agreement as it pertains to property, including specifying property or assets that are intended to be or remain the separate property of one spouse, and how assets or property should be distributed upon divorce or death.
A postnuptial agreement is different than a separation agreement because spouses who sign a postnuptial agreement are not separated and they are not signing the agreement with the intent to separate. Additionally, unlike a premarital agreement or separation agreement, a postnuptial agreement cannot be used to waive rights to alimony or spousal support.
A postnuptial agreement can have serious and long-term consequences. Therefore, it is not an agreement that should be entered into lightly. We recommend that both parties to a postnuptial agreement be represented by legal counsel to ensure that their respective rights and interests are protected and that both parties understand the full effect of the agreement.
A postnuptial agreement must be well-crafted to ensure that it complies with applicable laws and will serve the purposes for which it is intended. Such an agreement is best prepared by a family law attorney with experience in preparing such agreements. The family law attorneys at Gum, Hillier and McCroskey, P. A. provide knowledgeable and effective legal representation in a wide array of family related matters including consultation, negotiation and preparation of premarital agreements, postnuptial agreements, and separation agreements.
This article is for information purposes only and is not to be considered or substituted as legal advice. The information in this article is based on North Carolina state laws in effect at the time of posting.