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Post-Marital Agreements

A post-marital or post-nuptial agreement is similar to a pre-marital agreement except that the parties make the agreement after they are married. There is no strict requirement for either party to have an attorney review these agreements but it is a very good idea. The services of an attorney knowledgeable in these matters can help prevent misunderstandings and mistakes from happening that may only become evident in the midst of a divorce or probate proceeding.

In North Carolina, there are three critical elements to a post-nuptial agreement:

1. For a post-nuptial agreement to be binding, it must be in writing.
2. It cannot be inconsistent with public policy. In other words, such an agreement will not be enforced if it contains provisions that may be detrimental to the public good. 
3. It must be signed by a certifying officer. A certifying officer is a notary public or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk of the General Court of Justice for North Carolina or the equivalent or corresponding officer of the state or foreign country where the acknowledgment is made.

These agreements may touch on many areas of law and can be complex, especially in the case of pensions. For example, if spouses are making agreements affecting their respective rights to pension benefits, they must comply with the United States Code (federal law). These can be complicated issues and it is always best to have an attorney familiar with the law draft the agreement.

“Post-nups” enable married couples who aren't satisfied with the divorce laws in their state to structure their own settlement, so they can allocate their property and income as they see fit. Most states employ the "equitable distribution" method for splitting up assets in divorce: Assets are split equitably – not equally – with courts having the ultimate authority to decide what is fair under the circumstances.

You and your spouse can also enter into a written agreement after marriage overriding our North Carolina property law, whether or not you are contemplating separation. In fact, a post-nuptial agreement is most easily negotiated before there is even any talk at all of separation. If your spouse presents you with a post-nuptial agreement, telling you the contract is just for estate planning purposes, you would be well advised to discuss the draft agreement with an attorney. The attorney can point out what you might be giving up if you sign the proposed agreement. Just because you don't view your spouse as a potential adversary doesn't mean that your spouse holds the same view. Your mate may be planning for a separation that you don't yet know is in the cards.

When a man and woman are married (instead of just contemplating marriage), they may be held to a very high standard of fairness when dealing with each other on financial issues--perhaps a higher standard than would be the case if they were entering into a premarital agreement.

It is not only good practice to get legal advice before signing any marital agreements, it is in your best interest.

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Charles R. Ullman & Associates


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