VIRTUAL LIBRARY

A law called the Uniform Pre-Marital Agreement Act provides legal guidelines for people who wish to make agreements prior to marriage regarding ownership, management and control of property; property disposition on separation, divorce and death; alimony; wills; and life insurance beneficiaries. In North Carolina, a pre-marital or pre-nuptial agreement is defined under the Uniform Premarital Agreement Act as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 

You and your prospective spouse can make almost any agreement that you want in a pre-marital agreement, but you need to remember that the court does have the power to set these agreements aside if they are unfair in their terms or how they were executed. If you do decide to enter into a pre-marital arrangement, it should be done no less than 30 days before your wedding day. Having your pre-marital agreement negotiated and signed closer in time to your wedding than 30 days gives rise to questions of whether one spouse was under some duress, coercion, or undue influence to sign the agreement in order to have the wedding take place after expensive wedding plans had already been set in motion. Duress, coercion and undue influence are grounds upon which the validity and enforceability of a pre-marital agreement can be challenged later in court.

A pre-maritalagreement may deal with a wide range of issues including: 

• The rights and obligations of each of the parties in any of the property of either or both of them acquired before the marriage (Separate Property). 
• The rights and obligations of each of the parties in any of the property of either or both of them acquired after the marriage (Community Property). 
• The disposition of property upon separation, divorce, or death. 
• The making of a will, trust, or other arrangement to carry out the provisions of the agreement. 
•  the needs of the children, and 
• The ownership rights in and disposition of the death benefit from a life insurance policy. 

There are a number of options to consider when formulating a pre-marital agreement. An experienced attorney can provide advice that suggests the most advantageous structure for your pre-marital agreement. One option to is to prepare inventories of each party’s assets and liabilities at the time of marriage and make provisions that exclude all private assets from the marriage contract. Separate provisions may be added that allow for the separation of the growth of any of these assets or increases in the value of property defined as separate. A pre-nuptial agreement may also state that you will share in the common expenses of living together, but maintain completely separate personal assets. In other words there will no shared or community property that will be created as a result of the marriage.

The "bottom line" is that the rules of property division in North Carolina are quite complex, but the parties may agree as long as neither takes advantage of or defrauds the other. The only way to avoid unpleasant surprises when matters have reached the point of conflict and difficulty (this can happen due to death, disability or divorce) is to seek legal advice before the marriage.

Which ever way you decide to proceed on a pre-marital agreement, you will need the advice and guidance of a lawyer to ensure that the agreement is fair, filed properly, and within the guidelines specified by the state of North Carolina. An experienced family law attorney can help you define your short-term and long-term goals in reaching a pre-marital agreement with your fiancée, and can advise you on your rights under existing family law in North Carolina. It could be that your rights are well protected under our state statutes and a premarital agreement is unnecessary.

< Back to Virtual Library