How are Prenuptial Agreements Processed After a Divorce? Answers from a Prenup Lawyer
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How are Prenuptial Agreements Processed After a Divorce? Answers from a Prenup Lawyer
Divorce can be a difficult and stressful time, and that’s even before you have to start negotiating assets division. Having a prenuptial agreement can make the process less contentious and help both parties move on.
At Myers Law Firm, our skilled North Carolina family law attorneys can help you navigate sensitive and complex matters including prenuptial and postnuptial agreements, alimony, custody, and child support.
We address some common questions about prenuptial agreements here, but please don’t hesitate to contact us if you have further questions or need the help of a North Carolina prenup lawyer.
RELATED: Answers to the Top FAQs About North Carolina Divorce
How are assets distributed without a prenuptial agreement?
In North Carolina, the law requires an equitable distribution of a former couple’s financial assets, property, and debts if there is no prenuptial agreement (prenup) or postnuptial agreement in place. This means that when the court allocates property between parties, they will try to make sure that the split is fair, which is not necessarily equal. In states without equitable distribution requirements (known as community property), the court will split the assets down the middle, without further evaluation.
In either type of scenario, equitable distribution or community property, a valid prenuptial or postnuptial agreement overrules state requirements. The court, along with each spouse’s prenuptial agreement lawyer, will evaluate the prenup and ensure that it is correctly followed.
What is a prenup?
A prenuptial agreement also known as a prenup or premarital agreement, is a legally binding document that states how a couple will handle certain things during the marriage and how they will divide their property, assets, and debts in the case of a divorce. Most states have a default way of distributing a divorced couple’s property, such as a 50/50 split. However, if the couple has a valid prenuptial agreement, then the division plan outlined in that document would overrule the default.
A prenup can make a divorce go more smoothly than it might have without one. Deciding how things will be distributed between a divorced couple can be a long and stressful process, especially if emotions are high due to a contentious breakup. If the couple arranged the distribution of their assets ahead of their marriage in a more neutral state of mind, it could save them a lot of headaches in the process of dissolving their marriage.
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SCHEDULE YOUR CONSULTATIONWhat happens with the prenuptial agreement when the parties decide to separate?
After a divorce, the terms of the prenuptial agreement take effect. The agreement should include provisions that trigger the terms of the agreement. The agreement should also outline how all assets and debts are to be divided.
What makes a prenuptial agreement invalid?
North Carolina law has parameters for what can make a prenuptial or postnuptial agreement legally valid. This falls under the Uniform Premarital Agreement Act, or UPAA, which is codified in the North Carolina General Statutes under Chapter 52B. The law states that a valid prenuptial agreement must meet the following criteria:
- The prenuptial agreement must be in writing. The spouses cannot just rely on a conversation they had prior to the divorce about how they would allocate their assets. For such an agreement to be valid, the bare minimum is that it be in writing.
- Both spouses must have entered into the agreement voluntarily. If one of the spouses feels pressured by the other or by either spouse’s family, it could render the agreement void.
- The prenup must have been written with full financial transparency. If one or both spouses withhold assets because they want to keep them to themselves, or if they withhold debt to make their financial situation look better than it is, the prenup would be fraudulent and therefore invalidated.
- The premarital agreement must have been signed before the marriage was effective.
What happens if one spouse contests the prenuptial agreement or does not follow it?
Sometimes, one of the divorcing parties will challenge the prenuptial agreement. Reasons may include the prenup being fraudulent, having been signed under duress, or having been signed when the party was not in their right mind.
Since the agreement is a contract, the principals of enforcing a contract apply. If one party contests the validity of the prenuptial agreement, the issue could go in front of the judge. There may be defenses to the enforcement, but a properly drafted agreement where the process of signing it was followed should not put the agreement in jeopardy of being set aside or overturned.
If one party does not follow the agreement, the other spouse can go to court to compel compliance. This would involve a lawsuit for breach of contract and what is called specific performance. A properly drafted agreement will also contain a provision that the losing party in such a contest pays the other’s attorney fees.
What happens if the judge declares the prenup invalid?
If the court finds a prenuptial agreement invalid, they will discard it. The court will then proceed with the post-divorce allocations as if there had never been a prenuptial agreement.
In the case of a North Carolina divorce, this would mean that the court would proceed with the process of equitable distribution and alimony, which is the examination of all the assets, properties, and finances shared between the spouses. The court will then divide these assets as fairly as they are able and determine any spousal support or alimony payments that may be due from one party to the other.
How a North Carolina Family Law Attorney Can Help
Whether you have a prenuptial agreement or not, having an experienced attorney on your side can guide you through divorce proceedings with fewer frustrations. Our in-depth knowledge of North Carolina family law can help you avoid hurdles, delays, and battles in the process.
And if drafting a prenuptial agreement is still an option, an experienced lawyer also can help you ensure everyone’s interests are represented fairly should a division of assets be required at some point in the future.
RELATED: Is Everything Split 50/50 in a Divorce in North Carolina?
Contact Myers Law Firm for Help Through Your Divorce
Our legal team at Myers Law Firm understands that divorce is difficult even in the best circumstances. We approach each family law case with compassion, striving to find solutions that serve our clients’ best interests and resolve cases as smoothly as possible. However, we put our clients’ needs before any other concern and will never hesitate to stand up and fight for you in court, if necessary.
Our prenuptial attorneys have experience handling all the major family law issues that surround the end of a marriage, especially within the local court system in Charlotte, North Carolina and Mecklenburg County. Call our offices at (888) 376-2889 or fill out our contact form to request a consultation with one of our prenuptial agreement lawyers today.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
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