Can I get a “Pre-Nup”?
By: Laura C. Manfreda
You’ve heard about the movie stars or maybe even someone that you know that has been dragged through a long and burdensome divorce. Every asset between the couple has been scrutinized and fought over. Tears have been shed over who will claim sole ownership of the jewelry, furniture, and maybe even the couple’s pet. If it is a celebrity divorce, undoubtedly, a spectator will sigh and shake their head and say, “Why in the world didn’t he or she have a prenuptial agreement?” For most of us, a prenuptial agreement is like casting a large, black cloud over what is supposed to be a joyous occasion; the uniting of two loving people and all that they bring to the marriage. Having an agreement in place recognizes the possibility that perhaps a “happily ever after” may not occur. Incorporating a prenuptial agreement into a couple’s lives, especially into the beginning of their married life together, can be a difficult and emotional process, but for some it may end up being well worth the effort.
A prenuptial agreement, commonly referred to as a “Pre-Nup,” is a contract entered into before marriage by prospective spouses that becomes effective upon marriage. The agreement must be in written form and signed by both prospective spouses in order to be valid. Consideration for the agreement is not required. However, there must be a formal acknowledgment of a premarital agreement if the agreement refers to marital or divisible property under the equitable distribution act, which provides for the distribution of property upon divorce.
North Carolina has adopted the Uniform Premarital Agreement Act (see North Carolina General Statute § 52B). The parties to a premarital agreement may contract to any matter as long as it does not violate public policy or a criminal statute. An agreement may provide, among other things, for the rights of the parties in certain property, the distribution of property upon dissolution of the marriage, spousal support, the making of a will or trust, rights regarding insurance policies and the choice of law governing the construction of the agreement. A premarital agreement may not adversely affect a child’s right to support. Keep in mind that a premarital agreement can be amended or revoked after marriage only by a written agreement signed by both parties and, once again, consideration is not required.
Thus, if a premarital agreement is prepared and executed correctly, it is enforceable should the couple decide to dissolve the marriage. In order for the premarital agreement not to be enforceable, one of the party’s to the agreement must prove that the party did not execute the agreement voluntarily, or the agreement was unconscionable at the time of execution and that the complaining party was not provided a fair and reasonable disclosure of the other party’s property and financial obligations, had no knowledge thereof, and had not voluntarily waived, in writing, the right to disclosure. If a dispute arises as to the enforceability of the premarital agreement, in most cases the parties will be encouraged to settle their claims by way of an alternate dispute resolution, such as, a court-ordered settlement conference or arbitration.
Preparing and executing a prenuptial agreement is a personal and perhaps a practical decision for some of us. If you are considering such an agreement, contact an attorney knowledgeable in constructing and executing premarital agreements.
Laura C. Manfreda is an attorney with Knox, Brotherton, Knox and Godfrey. The firm’s website is www.knoxlawcenter.com. Open now is the newest office in Denver located at Hwy 16/73- Waterside Crossing. Laura can be reached at 704-315-2363 or 866-704-9059 (Toll free) or at lmanfreda@knoxlawcenter.com.
