One of the most common family law questions we receive is “Do I need a Prenup?” My first response to this question is always that this is a very personal decision that requires thoughtful consideration. Not only should you consider the legal and financial implications of this decision, but you should also consider the emotional outcome of asking your future spouse to sign a premarital agreement. It’s not for everyone.
But if you and your future spouse make the informed and responsible decision to enter into a premarital agreement, here are a few basics that everyone should know. First of all, premarital agreements are widely accepted and enforced by the State of North Carolina and these agreements are governed by the laws of contract. The terms of the premarital agreement are customized to the specific couple getting married so that they meet their specific needs and concerns. The couple can agree to issues such as property division, whether alimony will be paid and how much, attorney’s fees, and other issues that are specific to that couple. Child support can even be agreed upon as long as the agreement meets the reasonable needs of any children that exist from the marriage.
Even though premarital agreements are customized for each specific couple, there are a few guidelines that every premarital agreement must adhere to:
- The agreement must be in writing and signed by the parties. If the agreement contemplates real property division, it must be notarized.
- The parties entering into the agreement must do so voluntarily. There should be no evidence of fraud, duress, or coercion that caused one party to sign against their will. This is why it is important, although not required, that each party have individual representation by an attorney before signing the agreement. This is also why it’s never a good idea to surprise your spouse with a “prenup” the night before the wedding. Both sides need to have a reasonable amount of time to review the agreement and have independent counsel look it over.
- Each party must have a fair and reasonable disclosure of the assets and liabilities of the other party or a signed waiver of disclosure.
At the end of the day, whether or not you need a premarital agreement is up to you. No one wants to start a marriage by saying, “Hey, will you sign this agreement just in case we don’t make it?” But at the same time, it’s not a bad thing to want to protect property and assets that are passed down to you from your family and for personal reasons, you want to insure those assets stay in your family. Also, sometimes business partners may insist on another business partner getting a premarital agreement because they want assurances that a subsequent divorce will not affect business interests that they share with someone who is getting married.
The fact is that there are many legal, financial, and personal reasons to get a premarital agreement, but there are also reasons some people should not ask for one. Before making this decision, you should consult with an attorney to address your concerns. It is possible that a premarital agreement would not be needed to address these concerns. At Ludlum Law Firm, we pride ourselves in assisting our clients with making the right decision that is best for them. If you are getting married and have questions, we would be glad to sit down with you and help you with this important decision.