In the past, a prenuptial agreement had negative connotations attached to it. Some felt that asking a spouse to sign this agreement was akin to not trusting them. Many people, especially those who have watched their parents go through a difficult divorce, have reconsidered how they feel about prenuptial agreements.
Now, many more people are willing to discuss arranging a prenuptial agreement and want to have the conversation with their future spouse. A Hendersonville divorce attorney at Davis Curry can represent you in negotiating and drafting the prenuptial agreement.
Why Create a Prenuptial Agreement?
Many people used to think that a prenuptial agreement was a forecast of impending doom. Recent surveys have shown that roughly 40% of people between the ages of 18-34 have negotiated a prenuptial agreement before they get married. If you end up getting divorced, you may be thankful that you took this step.
When you are bringing assets into the marriage, you are taking a risk. Given North Carolina’s laws of equitable distribution, you could lose a significant amount of your assets if you were to get divorced.
In addition, you are facing significant uncertainty about how a court will divide your assets. Equitable distribution considers many factors, and the ultimate division of the marital assets is at the judge’s discretion. You would need to go through a long and costly litigation process to get to that point. Divorce litigation is also stressful and often all-encompassing. You are better off avoiding a trial if at all possible.
A prenuptial agreement can make a divorce more simple and easier. You may still need to litigate child custody issues, but much of the heavy lifting in a separation agreement is already done. In the meantime, you have taken steps to protect yourself and lower your own personal financial risk.
Alternatively, you could secure yourself some financial guarantees that could make your life easier after the divorce. The terms of the agreement could assure you of receiving a certain amount of assets or spousal support.
It may seem paradoxical to negotiate the terms of a divorce if it may never actually happen. However, you can think of a prenuptial agreement as giving some peace of mind that you would be taking one significant legal issue off the table if your marriage did end.
What Is Included in a Prenuptial Agreement?
The document is a legal contract that lays out the financial terms of the divorce ahead of time. A prenuptial agreement could include terms such as:
- Whether a spouse would receive alimony and how much they may get
- The division of the marital assets in the event of a divorce
- How premarital debts are to be handled
- What is considered premarital assets not subject to division
- A salary if you become part of a family business that you are forced to leave after a divorce
A prenuptial agreement cannot cover child support, since it is a right that belongs to the child, nor could you preemptively address custody issues.
How a Prenuptial Agreement Is Enforced
The prenuptial agreement becomes effective when the couple gets married. If they were to get divorced, the separation agreement would incorporate the terms of the prenuptial agreement, unless one spouse believes the agreement is unenforceable. Then, they would challenge the document’s validity, and the court would decide whether to enforce it.
North Carolina follows the Uniform Premarital Agreement Act. Presumably, the document would be effective if it meets the requirements of North Carolina law. It is up to one spouse to show why the agreement should not be enforced if they have any legal issues.
Disputes Regarding North Carolina Prenuptial Agreements
In fact, the primary dispute regarding a prenuptial agreement is whether it is enforceable in court. One spouse (usually the one who believes they are in a worse financial position) may challenge the agreement’s validity.
A prenuptial agreement is like any other contract. There are reasons why a contract may not be enforceable. Some arguments made about prenuptial agreements include:
- The terms of the agreement are unconscionable (they are grossly unfair and unbalanced)
- One spouse did not fully disclose their assets to the other before they signed
- One spouse coerced the other into signing the contract, or they were simply handed the contract and told to sign it without having any input of their own.
- The signing spouses did not each have their own access to legal representation
When you are negotiating and drafting a prenuptial agreement, you need to be careful not to strike a deal that is too lopsided (although the spouses do not need to receive an equal amount of money). At the same time, you also should not hold the agreement against your spouse’s well-being in the future.
The process matters, and an experienced prenuptial agreement lawyer could not just help you negotiate. They could also give the agreement a better chance of holding up in court by avoiding common pitfalls.
How a Prenuptial Agreement Lawyer Can Help You
You can think of a prenuptial agreement as pre-negotiating some of the terms of a divorce. Just like you would hire an attorney to help you with the actual divorce, you should also get legal help for this document.
A Hendersonville prenuptial agreement lawyer can do the following for you:
- Communicate with the other spouse’s attorney on your behalf (you do not want to speak directly with your future spouse because it could be difficult)
- Draft the terms of the agreement
- Review any agreement that is presented to you
- Negotiate any terms of the agreement
- Work to enforce an existing prenuptial agreement (or challenge the terms of one that you think may be invalid)
Contact an Attorney for Help with Prenup Agreements in North Carolina
The firm of Davis Curry Law can work with you on the prenuptial agreement process, keeping you out of the process directly while effectively negotiating a contract on your behalf. To speak with a prenuptial agreement attorney, you can send us a message online or call us today at 828-900-2420.