Understanding Prenuptial and Postnuptial Agreements: A Comprehensive Guide

When two people decide to marry, they do so with the intention of spending forever together. However, sometimes forever ends sooner than expected, and divorce is brought up as a next step. In fact, in 2021, there were about 690,000 divorces conducted in the United States, which was an increase from the year before. If you’re getting married, even if everything in your relationship seems picture-perfect, the reality is that there is a chance that your marriage could end in divorce. We cannot predict the future, and a prenuptial (or postnuptial, if you’re already married) agreement can benefit both you and your spouse if divorce does happen.

This blog provides a comprehensive guide on what prenuptial and postnuptial agreements are, the purpose of each, and what they entail. Let’s begin!

Prenuptial Agreements

What Is A Prenuptial Agreement?

A prenuptial agreement, also known as a prenup, is an agreement made by a couple before they marry, planning out how assets, debts, and other various aspects will be handled should they separate or divorce.  A prenup (coupled with an estate plan) can also address what happens if one spouse passes away. Both parties have to agree to the terms, and the contract serves as a plan for the distribution of any assets that were owned at the time of the separation, divorce, or death. A common misconception regarding prenups is that they are only for the wealthy; however, a prenup can be helpful to any married couple, regardless of their income, who wish to put a plan in place that is different than how the Courts would handle the matter or want to protect premarital property. Divorce can be tricky, but a prenup can lay a solid foundation for the process in order to keep everything as simple as possible.

Reasons You May Consider A Prenup

• To protect your assets (personal, business, or others)
• To protect yourself from your partner’s debts
• For estate planning purposes, like ensuring that your marriage doesn’t disrupt inheritance from remaining within your family’s lineage
• For clarity and responsibility, as prenups can outline financial roles and responsibilities
• To prevent financial disputes
• To set rules about what is marital property which might be different than how a Court would see it
• To keep you out of court with mediation and arbitration clauses
• And more!

What Can Be Included In A Prenuptial Agreement?

A prenup can allocate how premarital and marital assets will be distributed between spouses, as well as how debts like student loans, car payments, and more will be divided. Additionally, alimony and spousal support can also be included or waived in advance in a prenup to prevent any conflict down the road.

The specific laws for a North Carolina prenuptial agreement can be found here, however, it’s important to enlist the help of a seasoned family law attorney who can help you understand your options for a prenuptial contract, so that you can make decisions in the best interest of your future, should your marriage not go as planned. A prenup gives you and your spouse the opportunity to set the terms of your divorce, rather than leaving it in the hands of a judge who doesn’t know you.

It’s important to note that child custody arrangements, details regarding child support, and daily spousal responsibilities cannot go into a prenup.

Postnuptial Agreements (Postnups)

What Is A Postnuptial Agreement?

A postnuptial agreement, often referred to as a postnup, is a legal contract established by a married couple after they are married, outlining how they’ll manage their assets and debts in the event of divorce or in the unfortunate case of one spouse’s passing. Like a prenuptial agreement, it sets the terms of the property division and keeps a judge out of the equation.

Reasons You May Consider A Postnup

• To protect premarital assets if the couple does not have a prenup
• To protect assets that were earned after the marriage occurred
• To identify post-marital inheritance and carve it out from the marital estate
• To improve communication and trust between spouses regarding finances
• To designate how debts will be distributed within the marriage or in the event of a divorce
• To reduce Court involvement in the event of a separation or divorce
• And more!

What Can Be Included in a Postnuptial Agreement?

Just like a prenup, a postnup can outline how marital assets, debts, inheritance, and more can be distributed in the event of the dissolution of the marriage.  The one difference between the two is that while alimony and spousal support can be included in a prenup, a postnup generally cannot address this issue (unless the parties are separated).

It’s important to enlist the help of an experienced family law attorney who can help you understand your options for a postnuptial agreement well in advance of a separation so you can guard your interests if a divorce takes place. Sometimes people reconcile and sign a postnuptial agreement in case the reconciliation doesn’t work out–this helps keep them out of Court if they do end up separating for good.

Can I Use An Online Template To Create A Prenup Or Postnup?

Like anything these days, there are a number of online prenuptial and postnuptial agreement templates that you can obtain for free. However, it’s imperative that you don’t let the convenience of this option keep you from obtaining professional representation. A family law attorney will take the time to get to know your and your soon-to-be (or current) spouse’s situation so that they can understand your goals and if a prenuptial or postnuptial agreement is the right option for you. A template doesn’t have the ability to do that, and it may also lack the proper legal language necessary to make it valid in  North Carolina, which can lead to costly mistakes.

This Doesn’t Mean Divorce

Many people frown upon the idea of a prenup or postnup because it’s perceived as a lack of trust or faith that the marriage will work. There’s usually a cultural stigma that surrounds the topic, and even religious traditions that might play a role in one’s decision to avoid these agreements. However, it’s important to remember that a prenuptial or postnuptial agreement doesn’t mean that a divorce will occur.

Marriages end in divorce or death, and a premarital agreement can address both scenarios. Without a premarital agreement, you and your spouse are agreeing to follow the state law in the event of death or divorce, and neither may be what you had wished for. Prenups and postnups are legal tools that can offer protection for couples together and individually where they get a say over what happens. They allow couples the opportunity to have open and clear conversations about their financial state now and in the future. By addressing potential issues ahead of time, it can help couples strengthen their relationship, which can allow them to effectively navigate adversity should it arise in their relationship.