Planning for the future by entering a Postnuptial Agreement provides each spouse with comfort that he or she is protected if the marriage ends in divorce. This allows the couple to make decisions as to how their divorce should be handled in the future. This saves them from endless hours of divorce proceedings and arguments which can lead to animosity towards the other.
Often Postnuptial Agreements carry a negative connotation because it involves a married couple planning out the details of divorce. However, Postnuptial Agreements can be used as a great foundation for the couple to resolve disagreements in the marriage. If the couple creates a legally binding contract which details outcomes of their disputes, it can help create a stronger marriage because these issues no longer need to cause disagreements.
What is a Postnuptial Agreement?
The contents of a Postnuptial Agreements are like Prenuptial Agreements, but the main difference is the Postnuptial agreement is entered into after the couple has already married. The law is very broad as to what a married couple can include in their Postnuptial Agreements, but it usually addresses matters relating to property and debt distribution in the event the couple decides to separate or divorce which allows the couple to circumvent North Carolina’s equitable distribution law. Also similar to the law governing a Prenuptial Agreement, a Postnuptial Agreement may contain provision relating to spousal support but cannot include terms relating to child support and custody.
Besides financial matters, Postnuptial Agreements allow clauses detailing what should happen is one spouse commits infidelity. This allows the spouses to agree on financial protections to provide for the spouse which was the victim of their spouse being unfaithful. These provisions can promote loyalty between the couple by creating specific consequences, but also provides safeguards for both parties if they do face infidelity in their marriage.
What are the requirements to draft a Postnuptial Agreement?
In order for a Postnuptial Agreement to be considered valid and enforceable under North Carolina law, the contract must be drafted pursuant to three conditions, (i) It is in writing, (ii) It cannot contain provisions which violate public policy, (iii) The parties must sign in front of an office notary for the document to be notarized.
A valid Postnuptial Agreement requires both spouses to be fully transparent about their finances. If one spouse is not upfront about both their assets and debts, it does not allow the other to enter into a valid contract because the other spouse did not get the opportunity to man an informed decision about whether the agreement was in his or her best interest. When you and your spouse have decided to enter into a Postnuptial Agreement, it is important you seek an experienced North Carolina family law attorney to draft the terms of the agreement. This will ensure that the Postnuptial Agreement cannot be deemed invalid under the law.
Who needs a Postnuptial Agreement?
All couples can benefit from entering into a Postnuptial Agreement. It is well-known that many disagreements in marriage stem from discussing finances since each partner may have their own way of managing finances. By entering into the Postnuptial Agreement, you eliminate many of these arguments from happening.
It may not occur to many couples that a Postnuptial Agreement can benefit them until something occurs in their marriage. Some of the occurrences which prompt the drafting of a Postnuptial Agreement are:
- One spouse receives a large inheritance which he or she would like to keep separate from marital property.
- One spouse starts a business and does not want the assets or liabilities to become a part of marital property.
- A spouse has children from a prior relationship and wants to keep property separate for the benefits of the children.
- The spouses have decided to separate and want to draft terms relating to division of their property if they are unable to reconcile.
When considering a Postnuptial Agreement, it is important for both spouses to seek different counsel to ensure they each get proper representation. It is usually unethical for a family law attorney to represent both parties of a Postnuptial Agreement because of the significant conflict of interest.
How does it effect a Prenuptial Agreement?
When drafting a Prenuptial Agreement, a provision is typically included which advises that the Prenuptial Agreement cannot be amended or revoked unless in writing and signed by both parties. If you signed a Prenuptial Agreement prior to your marriage, but different circumstances arise after marriage occurred, you can enter into a Postnuptial Agreement and include language that it is to take the place of the Prenuptial Agreement.
Do you need an attorney for a Postnuptial Agreement?
North Carolina law does not require an attorney draft a Postnuptial Agreement for it to be a valid and enforceable contract. However, these documents require extreme attention to detail and many different elements to include to ensure the validity. Without an attorney, the couple risks part of their Postnuptial Agreement being thrown out by the judge because it contained provisions which are not allowable under North Carolina law or did not follow the elements for creation. Prior to hiring an attorney, it is important the spouses research the attorney to determine whether he or she has the experience and skill set to draft an enforceable Postnuptial Agreement.
A Postnuptial Agreement can provide your relationship with a foundation of how assets and debts are handled and provide for an efficient distribution if your marriage eventually ends in divorce. If you have any questions about Postnuptial Agreements, please contact our law firm here [insert hyperlink] or call us at [insert phone number]. When you choose to work with one of our knowledgeable family law attorneys, you are receiving a skilled, experienced and effective advocate.