Congratulations on your upcoming wedding! We will be happy to assist you with respect to the negotiation and/or drafting of a Prenuptial Agreement. In preparing this document, you need to be aware of the subject matter that can be addressed in a Prenuptial Agreement. Specifically, North Carolina General Statute §52B-4 provides that parties to a Prenuptial Agreement may contract with respect to the following:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property;
- The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
It is important to note that you cannot contract with respect to issues concerning children, such as custody or child support obligations, as these are examples of matters that would violate public policy.
The whole reason of having a Prenuptial Agreement is to make sure that it is enforceable in the future. North Carolina General Statute §52B-7 provides that a Prenuptial Agreement will not be enforceable if the party against whom enforcement is sought proves that that party did not execute the agreement voluntarily, the agreement was unconscionable, that party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. As you should note from the above, full disclosure (or the opportunity for full disclosure) of your property and financial obligations is critical to the enforcement of a Prenuptial Agreement. In order to preclude any future allegations of non-disclosure, it is important to include as an Attachment to the Prenuptial Agreement a list of all known separate assets and debts of each party as of the date of the marriage. We strongly suggest that you prepare a financial statement, which specifically outlines all of your assets and debts. Your future spouse will need to prepare a financial statement, which will also be attached to the Prenuptial Agreement.
In addition to disclosure, it is important that your future spouse signs the Prenuptial Agreement voluntarily and without any hint whatsoever of compulsion, duress, coercion, persuasion or undue influence, which might serve as the basis to set aside the Prenuptial Agreement in the future. Therefore, it is important that your future spouse reviews the Prenuptial Agreement with independent legal counsel of his/her own choice and that he/she have adequate time to review the document and secure legal counsel before the wedding. Although it may not be fatal to the enforcement of the agreement, depending on how sophisticated your future spouse is and his/her knowledge of your assets and debts, presenting him/her with a Prenuptial Agreement on the eve of the wedding is strongly discouraged.
We hope that this general overview provides you with some basic information about Prenuptial Agreements. There is no “standard” Prenuptial Agreement, and, as with most legal matters, “the devil is in the details.”