The Truth About Pre-Nups

Mar 21, 2013

The recent New York case striking down a pre-nuptial (aka “pre-marital” or “pre-nup”) agreement may scare some people who have signed or are thinking of creating pre-nups in North Carolina.


So, let’s get the facts out there before this story causes pandelerium (I know that is not really a word, but Jeff Foxworthy made it up and I like it):


North Carolina allows pre-nups and has adopted laws to specifically deal with pre-nups (NCGS 52B for the curious and/or nerdy).  In this state, a pre-nup must be written and signed by both parties. 


A pre-nup can deal with a wide range of legal issues in the event of divorce.  However, there are some important limits to what it can control.  A pre-nup cannot control child support in a divorce, cannot control property held as Tenants by the Entirety and cannot control a spouse’s rights in certain kinds of retirement plans. 


A pre-nup cannot contain provisions that are contrary to the public policy of this state.  For instance, a pre-nup probably cannot contain terms by which a couple agrees to get divorced at a date or event in the future because North Carolina’s public policy is to support marriage, and discourage divorce.


Pre-nups are enforceable in North Carolina.  So, it is generally difficult to get out from under a pre-nup’s terms when you get divorced.  To get out of a pre-nup, a spouse has to show that either they did not execute the agreement voluntarily (more than “I had my reservations…”), or a that the agreement is extremely unfair (not just a little) and that the other spouse failed to disclose something important in negotiating the pre-nup.  It is important to note that if everything was disclosed prior to signing the pre-nup, then it likely does not matter how unfair the pre-nup may be.  It will still be enforced. 


It is important for both parties to understand the uses and limitations of a pre-nup prior to signing the agreement.  If spouses understand them well going in, then they are much less likely to experience surprises like the one chronicled in the Today Show story. 


If you are interested in pre-nups or post-martial agreements (for people who are married and want to stay married but want to make decisions in advance about what would happen if they divorce), then Collaborative Divorce is an ideally suited process for arriving at your agreement without damaging the relationship.  

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