Most soon-to-be-married couples are familiar with prenuptial agreements – contracts that can be drafted to protect your assets or dictate how you will perform certain transactions as a married couple (such as buying or selling marital property).
However, it is also possible to draft documents similar to this after you’ve already been married. Such contracts are known as a “postnuptial agreements.”
Attorney Jonathan Breeden has experience with all types of marriage agreements. He can help you iron out the details of your marriage before or after the ceremony. Call him today at (919) 661-4970 to find out how he can help you.
Before you were married, you had an opportunity to draft a prenuptial agreement, but for whatever reason, you decided not to do so. While postnuptial agreements may be more difficult to validate in court, they have become a recognized part of the legal system.
There are many reasons a couple might want to sign a postnuptial agreement. The contract can be used for estate planning purposes, but it can also be used to protect the parties if the marriage ends. For example, one spouse may inherit a large sum of money during a marriage or if a spouse has been unfaithful, the other spouse may decide to draw up a postnuptial agreement so that he or she may have some financial protection if the marriage ends.
Like a prenuptial agreement, a post-nuptial agreement allows a couple to determine for themselves how their marital property should be distributed upon separation, rather than allowing the court to make that decision.
It may be difficult to conceive of an instance where you and your spouse may separate. However, nowadays nearly half of all marriages end in divorce, so it may be in your best interest to protect yourselves.
What the court deems equal in the equitable distribution process may not always be agreeable to the couple. Additionally, it’s important to remember that the court’s decisions regarding equitable distribution are final, so you and your former spouse would not be able to request modifications.
Essentially, a postnup makes each spouse accountable. Once the agreement is finalized each party will know the financial impact if the marriage fails. This could make both spouses more committed to saving the relationship or at least allow for more open communication.
For instance, if a specific event like infidelity caused trouble in a marriage, a postnup, could highlight what’s valuable and remove certain obstacles. ,In addition, if the a marriage is simply unsalvageable, a postnup can make an impending divorce easier.
Like a Prenup, a postnuptial agreement can be tailored to your specific needs and address financial rights and property ownership for each spouse. This first step in securing a valid and enforceable postnuptial, is to collect your financial details to create a full disclosure of all assets and liabilities. It’s also essential that each spouse have their own legal representation so neither is coerced into agreement.
Generally, what you can and cannot include in a postnuptial agreement will be governed by state law. Some of the items commonly included in North Carolina postnupts are:
In order to be valid, the postnuptial agreement needs:
Like most contracts, a postnuptial agreement is invalid if the signature of one of the parties was obtained while the party was under duress or was coerced into signing.
There are very strict guidelines when creating and enforcing postnuptial agreements in North Carolina. This includes how they are prepared, what can be included, and how they must be signed.
Since these agreements are meant to simply the process in the event your marriage ends, it only benefits you to invest some time to properly plan and implement a valid postnuptial agreement. An experienced attorney, like Jonathan Breeden can help by reviewing your situation, determining what should and should not be included, and facilitate a smooth process, so you and your spouse create an agreement that meets everyone’s needs and protects everyone’s rights.
It’s important to remember that a postnuptial agreement must be deemed fair by both parties, and should not be used as a “pre-divorce weapon.” Like with a prenuptial agreement, the court reserves the right to throw out a postnuptial agreement if it deems it unjust.
It’s best to task a seasoned North Carolina divorce attorney with the drafting of your postnuptial agreement. With more than 15 years of experience in the North Carolina divorce and family courts, Jonathan Breeden knows how to draft a postnuptial agreement that will divide your property in a way that you will both find fair, and that the court will find equitable and enforceable. Call Breeden Law Offices at (919) 661-4970.
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