Prenuptial, Separation And Property Settlement Agreements

Prenuptial, Separation & Property Settlement Agreements

In general, parties have the right to mutually agree among themselves how they desire to handle various issues stemming from a dissolution of a marriage and have their agreement set forth in a legally binding written agreement. There are different types of agreements individuals may enter into - there are premarital agreements, separation and property settlement agreements and postnuptial agreements.

Premarital Agreements

Premarital Agreements are agreements that parties enter into prior to marriage where the parties determine how issues arising from the marriage will be resolved in the event of separation, divorce, death or the occurrence/nonoccurrence of any other event. In a Premarital Agreement parties often set forth how property will be divided in the event of a separation, divorce or death and how alimony issues will be resolved (elimination, modification or otherwise) in the event of a separation or divorce. Premarital Agreements must be in writing, signed before a certifying officer and must not be inconsistent with public policy. A Premarital Agreement becomes effective upon the prospective marriage actually taking place.

The Uniform Premarital Agreement Act governs Premarital Agreements in North Carolina. The Uniform Premarital Agreement Act defines a Premarital Agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage."

Oftentimes a Premarital Agreement will cover the following areas pursuant to N.C.G.S. § 50B-4:

  1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever situated;
  2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign….or otherwise manage and control property;
  3. The disposition of property upon separation, death or the occurrence or nonoccurrence of any other event;
  4. The modification or elimination of spousal support;
  5. The making of a will, trust or other arrangement to carry out the provisions of the agreement;
  6. The ownership rights in and disposition of the death benefit from a life insurance policy;
  7. The choice of law governing the construction of the agreement; and
  8. Any other matters including personal rights and obligations that are not in violation of public policy or a criminal statute.

Separation and Property Settlement Agreements

In North Carolina, individuals may enter into a Separation Agreement provided said agreement is not inconsistent with public policy. A properly prepared agreement shall be legal, valid and binding in all respects provided that the separation agreement is in writing and acknowledged by both parties before a "certifying officer" as defined in N.C.G.S. §52-10(b).

Postnuptial Agreements

Postnuptial Agreements are agreements entered into after the date of marriage but prior to the date of separation. A postnuptial agreement, like a separation agreement, may be entered into provided said agreement is not inconsistent with public policy. A Postnuptial Agreement, like premarital and separation agreements, shall be legal, valid and binding in all respects provided that the agreement is in writing and acknowledged by both parties before a "certifying officer."