Guide to Premarital Agreements in North Carolina

Read our guide below to learn more about premarital agreements, what they’re used for, and how they can affect your legal rights.

What is a premarital agreement?

A premarital agreement is an agreement between a couple made in preparation of marriage and it becomes effective as soon as they marry.

It’s important to note you can’t make a premarital agreement if you live with a significant other but have no intention of marrying them.

What issues can you address in a premarital agreement?

The main purpose of a premarital agreement is to allow potential spouses to address present and future property rights. Spouses coming into the marriage with a great deal of real or personal property often want to make sure that property will stay separate after the marriage ends.

In addition to handling separate property, potential spouses also use premarital agreements to address the division of marital and divisible property if the marriage ends. Generally, marital property includes any asset or debt acquired during the marriage while divisible property includes property that would otherwise be classified as marital, except that it was acquired after the date of separation and before the date of divorce. The division of marital and divisible property is usually handled via an equitable distribution claim after the spouses separate. But with a premarital agreement, couples can address the issue before getting married–so if they do divorce later, the issue is already settled.

Premarital agreements also allow couples to:

  • Relinquish all rights to each other’s property
  • Waive the right to inherit from one another
  • Provide terms for spousal support, including alimony and post-separation support
  • Waive the right to receive spousal support (although, as discussed in more detail below, North Carolina will not honor a waiver if certain conditions apply)
  • Waive the right to attorney fees

What can’t premarital agreements do?

As long as a premarital agreement fully covers every aspect of the marital estate, there is no reason to file an equitable distribution action. However, the existence of a premarital agreement doesn’t automatically stop a person from filing one. Any property that isn’t covered by the premarital agreement but is owned by the spouses should be distributed in an equitable distribution action. That being said, if a spouse believes some property isn’t covered by the agreement, they should make sure to prepare a convincing case as to why it isn’t covered.

Regarding support, North Carolina does not allow a premarital agreement to adversely affect the right of a child to child support. Additionally, if the premarital agreement doesn’t adequately provide for the needs of the dependent spouse (either because they agreed to waive spousal support completely or because the terms of the agreement aren’t enough), the court may order the supporting spouse to provide additional support.

A North Carolina court may order additional support if the terms of the premarital agreement cause the dependent spouse to be eligible for public assistance after the spouses separate. To do that, the court must find the grounds for spousal support exist. Once it does, the court may order support only to the extent necessary to avoid eligibility for public assistance.

Lastly, a premarital agreement cannot establish child custody rights.

What is necessary for a premarital agreement to be valid?

To be valid, the agreement must be in writing and signed by both parties.

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Can a premarital agreement be modified or revoked?

After a couple gets married the couple can amend or revoke the agreement simply by executing a written agreement signed by both spouses. However, the issue is not as cut and dry if the couple attempts to modify or revoke the agreement prior to the marriage. For instance, if a couple calls off the wedding but later marries, the court will likely try to determine if the temporary cancellation revoked the agreement.

Can a premarital agreement be invalidated?

According to N.C. Gen. Stat. §52B, if the court determines the marriage is void, the court will enforce the agreement only to the extent necessary to avoid an inequitable result. In addition, the statute allows two instances in which the court won’t enforce an agreement. If one of the parties proves the agreement wasn’t executed voluntarily, the court will not enforce it.

Likewise, the court won’t enforce the agreement if it finds the agreement was unconscionable (grossly unfair) when it was executed and, before execution, the party:

  • Wasn’t provided a fair and reasonable disclosure of the property or financial obligations of the other party
  • Didn’t voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided
  • And didn’t have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party

If you’re getting married and thinking about creating or signing a premarital agreement, it’s important to have a knowledgeable family law attorney draft or review it with you before you sign it. These types of agreements have lasting consequences on your legal rights so it’s important to fully understand what might happen in the future if you sign one now. If you’re separated from your spouse or are contemplating separation and have a premarital agreement in place, our experienced family law attorneys can discuss what you’re entitled to and what your options are under the law. Contact our office today to schedule a consultation.

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