Premarital agreements, also called prenuptial agreements or ante-nuptial agreements, are written private contracts between two people who are about to be married. These specific agreements set the terms of possession of assets, treatment of future debt and earnings, control of the property for each party, and the possible division of property if the marriage were to be dissolved at a later date. These agreements are more common if either or both parties have substantial assets, children from a prior marriage, potential inheritances or trusts, high incomes, or have previously been through a divorce. These can be valuable regardless of your wealth or circumstance.
Most people do not going into a marriage believing it will end. However in the United States 1.2 million couples, about 50% of all marriages, end their marriage. This is why pre-nuptial agreements are more common today.
Getting divorced can be expensive. A valid premarital agreement can save you from a contentious court battle and insure that your children will not be used as pawns in a messy divorce. Either party can stipulate that property pass directly to the children instead of to each other. It can also give you peace of mind knowing that you won't lose what you have worked for.
There is a popular notion that premarital agreement will not hold up in court, but this is not true. A properly written and executed premarital agreement is enforceable.
Prenuptial Agreements are valid in all 50 states and the District of Columbia. At least 26 states, including North Carolina, have enacted a variation of the Uniform Premarital Agreement Act (UPAA), which encourages the enforcement of all prenuptial agreements.
Despite their enforceability, a premarital agreement can be set aside for fraud, duress, failure to disclose, unfairness, and failure to be adequately represented. Both sides should have independent legal counsel to advise them in the drafting and review of the prenuptial agreement. An experienced family law attorney can help you define your short-term and long-term goals in reaching an agreement with your fiancé.
The failure to disclose is the largest issue we find which can affect its enforceability. All states require that there be full disclosure of all property and assets and that each spouse be fully aware of what they are getting and giving up. If either side is not represented by counsel, or even poorly represented, these agreements can be set aside.
