As is the case with a prenuptial agreement, a postnuptial agreement is a binding contract between two people that sets certain terms regarding ownership of property or what should happen if they ever separate or divorce. Where postnuptial agreements differ is that they are enacted during the course of the marriage instead of beforehand. A skilled martial agreements attorney can advise a spouse on when a postnuptial agreement might be in their best interest.
A postnuptial agreement must meet certain requirement to be valid. Any mistakes when drafting these contracts could render them unenforceable. Given the stakes, you will benefit from discussing your options with a Kernersville postnuptial agreements lawyer at Apple Payne Law.
Every spouse has their own reasons for pursuing a postnuptial agreement. While the circumstances that could lead to a postnuptial agreement are varied, certain situations are more likely than others to make these agreements feasible. A knowledgeable lawyer at Apple Payne Law in Kernersville can assist individuals in determining when a postnuptial agreement is appropriate.
In many situations, a postnuptial agreement is used as a precursor to divorce. Some parties choose to enter into these agreements prior to separating to avoid the costly and public litigation that comes with dissolving their marriage. Other spouses use these agreements as a condition for remaining in a marriage. Following incidents of infidelity or drug use, a spouse might only agree to remain in the marriage in exchange for a postnuptial agreement.
Another reason is to revise a prenuptial agreement – whether it’s because of a huge promotion, large bonus, inheritance or large change in the family’s finances, updating what you might do in case of divorce and how to handle the sudden income changes is a common reason to create a postnuptial agreement.
On the other hand, a postnuptial agreement may be helpful to ensure peace of mind among spouses who have no intention of divorcing. For example, these agreements are useful when one spouse accumulates substantial debt during marriage and does not want their spouse to be personally responsible for it, or when a large inheritance is received and invested in property that benefits the marriage (such as paying off a mortgage or student loans, or to buy a vacation house, timeshare, etc.)
While courts usually uphold signed marital agreements, the courts are not obligated to uphold every agreement entered into by spouses in Kernersville. There are limitations on what topics these agreements can cover, and they must also meet certain technical requirements. A competent attorney with Apple Payne Law will help ensure a postnuptial agreement meets all of the requirements under the law.
First and foremost, any postnuptial agreement must be in writing and executed by both spouses. This written agreement must also be certified by a notary public or “certifying official” as defined by NCGS § 52-10(b). The terms of the agreement must be clear, particularly in any case where a spouse waives a right they would otherwise be guaranteed under the law, such as alimony, half of the marital property, et cetra, and should also be supported by “consideration”, which is a legal way of something that it can’t be one sided – there must be something for each spouse in a post-marital agreement. Remaining in the marriage is one example of acceptable non-monetary consideration, or generally being able to also benefit from the terms.
Postnuptial agreements must also be entered into without any fraud or undue pressure. If an agreement is not signed willingly, it will be open to being challenged and/or thrown out in court, especially if it is very one-sided.
Since major revisions in 2013, NC allows pretty much most terms in a postnuptial agreement. Unlike property issues, the court has the power decide issues involving children based on the child’s best interests, even if the parents reach agreement. Therefore, language regarding child custody, support, or visitation in a postnuptial agreement is considered a good “starting point” for a court, but they can review whether such arrangements are in the child’s best interest later on. However, a well written agreement can lay out concerns for a judge and also minimize future conflict.
Additionally, postnuptial agreements cannot contract for terms “against the public interest.” For example, you cannot condition terms on collusion (i.e., agreeing to falsely “back date” a separation agreement to obtain a divorce before the statutory 12-month requirement),
If you are considering a postnuptial agreement, now is the time to discuss your options with legal counsel. The sooner you talk to an attorney, the sooner you can protect yourself and your assets as well as make sure that your goals can be accomplished properly.
A Kernersville postnuptial agreements lawyer can help with the hard work of developing an agreement. Call Apple Payne Law right away to learn more.