Charlotte Separation, Prenuptial & Postnuptial Agreement Attorneys


Agreements (Separation, Prenuptial, & Postnuptial)

 

Separation Agreements

The State of North Carolina does not require any specific paperwork to be filed in order to be separated. However, when parties decide to separate, it can be beneficial to have a private contract in place that formalizes the separation. These contracts are commonly known as separation agreements. A separation agreement may simply acknowledge the parties’ intent to live separate and apart. It may also set forth various provisions such as a free trader clause, which allows a party the right to buy or sell real estate without the other party’s knowledge or consent; and a mutual waiver of the right to inherit from one another.

Additionally, separation agreements are commonly used to formalize mutually agreed upon terms for settlement. If parties have reached a resolution, terms regarding property distribution, alimony, child custody and/or child support may be included in a separation agreement. Depending upon what matters are resolved in the agreement, the name of the agreement will change. For example, an agreement resolving separation and property settlement will be called a Separation and Property Settlement Agreement. Settlement documents may be in the form of contracts or court orders, and it is important that you discuss which format is preferable for your particular case.

If you are contemplating divorce or have been asked to sign a separation agreement, it is important to know your rights and be aware of the options available for your specific goals and situation. The attorneys at Hatcher Law Group can help. We assist clients with negotiating and drafting separation agreements, and reviewing separation agreements prepared by other attorneys, as well as representing clients in legal actions to enforce or set aside the provisions of a previously executed separation agreement. Please contact us to schedule a consultation with a family law attorney.

For more information about separation agreements, please visit our FAQs page.

Prenuptial Agreements

A premarital agreement, commonly referred to as a prenuptial agreement, is a contract between two parties contemplating marriage. It may resolve how important issues arising from the marriage will be handled in the event of separation, divorce or death.

There are many reasons to consider a premarital agreement. If you have children from a previous relationship, it can ensure certain assets are passed on to them. Or, perhaps you wish to protect individual assets such as a small business, property or wealth accumulated prior to marriage. A premarital agreement may also specify how debt acquired before the marriage will be handled. Finally, to some degree, premarital agreements can create a roadmap for how marital assets and debts will be divided upon separation and can address alimony issues that may arise.

The attorneys at Hatcher Law Group advise clients on all aspects of premarital agreements, whether it’s negotiating and/or drafting the terms of such agreements, reviewing agreements prepared by other attorneys, or representing individuals questioning or defending the validity of a previously signed agreement.

As with all family law matters, each person’s situation is unique. While a premarital agreement may be necessary for one couple, it may not benefit everyone. Seeking the guidance of an experienced family law attorney will ensure your interests and rights are protected if you or your future spouse wish to enter into a premarital agreement. Please contact us to schedule a consultation with an attorney.

For more information about premarital agreements, please visit our FAQs page.

Elements of a premarital agreement in North Carolina
  • Premarital agreements must be in writing and signed by both parties prior to the marriage
  • Both parties must enter into the agreement voluntarily
  • There must be fair and reasonable disclosure of the property or financial obligations of both parties or such disclosure must be waived in writing
  • Premarital agreements cannot eliminate the right of a child to support
  • Premarital agreements become effective upon marriage
A wide variety of concerns can be addressed in premarital agreements, including:
  • The rights and obligations of each party with respect to property, regardless of when acquired or where the property is located
  • The right to buy, sell, use, transfer or otherwise manage and control property
  • How property will be divided upon separation, death or the occurrence (or nonoccurrence) of some event
  • The elimination of alimony
  • The making of a will, trust or other such document to carry out the arrangements in the premarital agreement
  • Rights regarding life insurance policies
  • The choice of state law governing the agreement
  • Any other matter including personal rights and obligations which are not in violation of public policy or a criminal statute
A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
  • He/she did not execute the agreement voluntarily; OR
  • The agreement was unconscionable when it was executed and, before execution that party:
    • Was not provided a fair and reasonable disclosure of the property/financial obligations of the other party;
    • Did not voluntarily and expressly waive in writing any right to disclosure of property/financial obligations beyond the disclosure provided; and
    • Did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other.

Postnuptial Agreements

A postnuptial agreement is an agreement between spouses that is entered into during the marriage. It can be distinguished from the more common premarital agreement, which is a contract between two parties contemplating marriage.

Spouses who have acquired a diverse estate of real and personal property during their marriage may want to consider entering into a postnuptial agreement. State law prohibits this type of contract from being used to encourage the parties to get a divorce. However, postnuptial agreements can be drafted to create a roadmap for how marital assets and debts will be divided in the event of divorce. Postnuptial agreements may not address spousal support rights, such as alimony, unless the agreement was signed during a period when the spouses were separated but contemplating reconciliation.

If you or your spouse wish to enter into a postnuptial agreement, seeking the guidance of an experienced family law attorney will ensure your interests and rights are protected. Please contact us to schedule a consultation.

Elements of a postnuptial agreement in North Carolina
  • Postnuptial agreements must be in writing and signed by both parties
  • The parties must be legally married
  • The agreement must be notarized
  • Both parties must enter into the agreement voluntarily
  • The agreement cannot contain any provisions contrary to public policy
A variety of property rights can be addressed in postnuptial agreements, including:
  • The rights and obligations of each party with respect to property, regardless of when acquired or where the property is located
  • The right to buy, sell, use, transfer or otherwise manage and control property
  • How property will be divided upon separation, death or the occurrence (or nonoccurrence) of some event
  • The making of a will, trust or other such document to carry out the arrangements in the postnuptial agreement
  • Rights regarding life insurance policies
  • The choice of state law governing the agreement
  • Any other matter including personal rights and obligations which are not in violation of public policy or a criminal statute
While a premarital agreement can waive the obligation of a spouse to pay alimony, postnuptial agreements cannot affect support rights of the
parties. A contract between married persons can waive alimony only if:
  1. The agreement was entered into by the parties during a period of separation, and in anticipation of reconciling; or
  2. The agreement is a separation agreement, which is entered into by parties contemplating separation or divorce.

Like with alimony, spouses also cannot contract for child support payments in a postnuptial agreement. Married persons may enter into an agreement that contains a child support provision if the contract is a separation agreement. Regardless of whether provisions for child support or child custody are in an agreement, the court still has the authority/ability to hear any issues that may arise in the future.

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