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What can and cannot be in a premarital agreement

On Behalf of | Aug 8, 2019 | Property Division |

Society’s view of the premarital agreement is changing. For many years, the prenup was either joked about or spoken of only in hushed tones. Increasingly however, Americans are realizing a premarital agreement can be an effective way to protect personal assets in the event of a separation and help both partners feel secure in the financial implications of their decision to marry. In fact, matrimonial lawyers have noted an increase in couples interested in premarital agreements, according to a CNBC report.

There are limits to what a premarital agreement can include, dictated in part by North Carolina law. Here is an overview of what couples can – and cannot – place in a prenuptial agreement.

What can be in a premarital agreement

North Carolina statutes allow for premarital agreements to include a wide range of provisions. In all cases, a prenup must be in writing and signed by both parties. From there, a couple may choose to include:

  • Rights and obligations regarding separate or marital property
  • The right to buy, sell, manage or make other choices about property
  • Considerations for what happens to certain property upon separation
  • An alteration to, or elimination of, spousal support, so long as this does not create a situation where a spouse would be forced to go on public assistance
  • The creation of a will or trust to carry out certain provisions in the marital agreement
  • Life insurance policy rights
  • Any other matters, including each spouse’s “personal rights and obligations”

The law offers flexibility to tailor an agreement based on the couple’s goals and respective financial situations. For this reason, a prenup can be a document that helps keep people out of court if they eventually separate or divorce. It is not quite all-encompassing, however.

What cannot be in a premarital agreement

North Carolina bars couples from including a few things in a premarital agreement.

For one, the right of a child to support cannot be “adversely affected” by a prenuptial agreement. Essentially, spouses cannot limit or eliminate child support through a prenup, nor can they predetermine child custody rights. The courts must take the child’s best interests into account at the time of the divorce when making those decisions, and parties cannot contract away rights dealing with the children.

In addition, none of the provisions in a premarital agreement can violate public policy or be considered criminal behavior. There may also be cases where a court finds a premarital agreement to be invalid. That could be because a spouse that signed it did not do so voluntarily, or because the courts determine the agreement is “unconscionable” – a spouse did not fully disclose financial obligations and the terms were extremely one-sided and unfair, for example.

Oftentimes, the best way to help ensure a premarital agreement is valid and includes only what the law legally allows is to consult with an attorney. An attorney can assure that full financial disclosures are engaged in and recommend a process for negotiation and execution of the document that is fair and legally enforceable. An attorney may be able to answer any questions you have, and help craft a prenup both spouses feel fully protects them no matter what happens.