Premarital Agreements

An area of family law practice considered to go hand in hand with divorce is that of premarital agreements. These are agreements between people who are considering marriage but have not yet married. These agreements can deal with property division, alimony, and estate rights in the event of the death of a spouse.

Essentially, these types of agreements allow parties who are considering marriage to determine what will happen if they later divorce. This means that these important matters are not left up to the court to decide and are no longer open to negotiation once either party files for divorce. Instead, the two parties have already decided the major issues that come along with a divorce.

Given the broad nature of premarital agreements and the serious matters that they can be used to deal with, including the division of property and alimony, it is important to have an experienced family law and divorce attorney to assist you through this process. In fact, for a premarital agreement, each party should have their own independent attorney analyze the terms of the agreement to make sure that their interests are represented.

North Carolina is a Uniform Premarital Agreement Act state. Another word for premarital agreement is prenuptial agreement or prenup. This means that with disclosure or certain waivers of disclosures, the North Carolina parties can agree on property division and alimony (or waiver) of these AND estate rights in the event of the death of a spouse. Each spouse needs their own lawyer.

An example of someone who might consider a premarital agreement would be a Greensboro businesswoman who owns a substantial business, who has grown children, and has been divorced once. The Greensboro woman would have much to protect. Further, grown children frequently view a new spouse as a threat to an inheritance, and the grown children might rest easier if they knew "mom had a prenup".

Also, while the premarital business might be separate property, under the North Carolina equitable distribution statute, the premarital business might have "active" appreciation after the marriage. Active appreciation is considered marital.

An example of another situation for consideration with regard to a premarital agreement might be the Asheboro man who is only 25, a college graduate, and is marrying his college sweetheart; neither have been married before; neither have children; and neither have money. However, the Asheboro man will go to work in his parent's business and may inherit a large sum in the future, which may include stock in the family business.

The family business is a cause for concern, as this certainly could lead to active appreciation, due to son's efforts, and thus, could become marital property.

Also consider this scenario. Bride-to-be from High Point receives $5,000 of alimony per month from her ex, and she will receive this for four more years. She wants to get on with her life and has found the love of her life. But she doesn't want to give up the alimony. A premarital agreement could provide for replacement of the alimony that will be given up at the wedding.

A Lexington man is paying "too much alimony" to his ex and he doesn't want to be burned again with his new, and second, wife. A premarital agreement could solve this problem for him. He could obtain a waiver of alimony before the wedding.

When should you mention a premarital agreement to your intended for the first time?

The answer is: the sooner the better. If you are adamant about having a premarital agreement or NOT signing a premarital agreement, it is important to know the other partner's point of view as early as possible in the relationship. If having (or not having) a premarital agreement is a deal breaker, the last thing you want is to have the wedding party gather and then discuss this important issue at that time!

Carolyn Woodruff, JD, CPA, CVA, suggests looking for the first innocuous time to mention your position on a prenup -- maybe you are watching television with your significant other and someone on the television mentions a premarital agreement. Use that as your opportunity to bring up the issue.

When should the premarital agreement be signed?

Woodruff Family Law Group suggests that a premarital agreement be signed at least sixty days before the wedding and certainly before wedding invitations are sent.

Can alimony be covered by a premarital agreement?

Yes.

Can alimony be waived by a premarital agreement?

Yes

Can one attorney represent both the bride and groom?

This is a really bad idea.

Will I have to make income and property disclosures?

Yes, disclosure (or waiver of disclosure) is part of the pre-marital process.