North Carolina Prenuptial Agreements

A prenuptial agreement lets you and your future spouse decide in advance how to handle property and finances both during the marriage and if the marriage ends. North Carolina law establishes clear guidelines for what these agreements can cover and what makes them legally binding.

Deciding whether you should have a prenuptial agreement is a personal choice. Some people view prenuptial agreements as a practical tool for protecting their assets and planning for the future. Others worry that they might send the wrong message to their partner before a wedding. This article explains what a prenup can and cannot do, what makes one legally enforceable, and how to protect yourself if you choose to sign one.

If you are considering a prenuptial agreement, speaking with a North Carolina family law attorney before you sign anything can make a real difference. They can help you draft an agreement that holds up in court and make sure your interests are protected.

Which Law Governs Prenuptial Agreements in North Carolina?

North Carolina follows the Uniform Premarital Agreement Act (UPAA). This law sets out the rules for creating, enforcing, changing, and canceling prenuptial agreements in the state. Under North Carolina state law, a prenuptial agreement is a contract between two people who plan to marry. It takes effect when the marriage happens. It carries no legal weight until you actually get married.

The UPAA lets you set your own financial terms instead of relying on the state’s default rules about marital property and divorce. Many other states have also adopted the UPAA. If you or your future spouse lived in another state before moving to North Carolina, or plan to relocate, the agreement may still be recognized under that state’s version of the UPAA.

Requirements for a Valid Prenuptial Agreement

In North Carolina, courts consider certain factors when assessing the validity of a prenuptial agreement, including whether it was properly executed and enforceable. Let’s see what these elements take into consideration:

• In writing and signed by both parties: The agreement must be written and signed by both of you before the wedding. Unlike most contracts, a prenup does not require consideration. Neither participant must exchange something of value to make the agreement binding or effective.
• Voluntary signing: Both parties must sign the agreement voluntarily, free from pressure, threats, or undue influence. North Carolina courts look at the full circumstances surrounding the signing. In Kornegay v. Robinson (2006), the North Carolina Court of Appeals upheld a prenuptial agreement even though one spouse received it on the day before the wedding and had no independent legal counsel. The court found that those circumstances alone were not enough to prove involuntary signing.
• Fair financial disclosure: A prenup isn’t valid if either side hides assets. Each party should receive a fair and reasonable disclosure of the other’s property and financial obligations before signing.

North Carolina courts can invalidate prenups that weren’t crafted with these requirements.

What Can Be Included in a North Carolina Prenup?

Under state law, couples have wide flexibility in what they can address in a prenuptial agreement. Here are the main topics you can cover:

• Property rights and obligations: Your agreement can specify the rights and obligations each of you has in any property, including separate property, regardless of when or where you acquired it
• Property management and control: You can address the right to buy, sell, transfer, mortgage, or otherwise handle and oversee property during the marriage
• Division of property: You can decide in advance how your assets and debts will be split upon separation, in the event of a divorce, death, or any other event you choose to address
• Spousal support: You can agree to limit, modify, or waive alimony, unless doing so would leave one spouse in need of public assistance
• Estate planning: A prenup can address how wills, trusts, or other arrangements will carry out your intentions
• Life insurance: You can specify ownership rights and how death benefits from a life insurance policy will be distributed
• Choice of law: You can designate which state’s laws will apply if the agreement is ever interpreted or enforced
• Other personal rights and obligations: Terms must not violate public policy or break criminal laws

Courts can strike down any provision of a prenuptial agreement they deem illegal.

What Can’t Be Included in a North Carolina Prenup?

Some provisions are off-limits under North Carolina law. Even if both of you agree to them, a court will not enforce these terms:

• Child support: A prenup cannot adversely affect child support. Courts decide child support based on the child’s needs at the time of the proceedings, not on terms you agreed to before the child was born.
• Child custody and visitation: Any custody or visitation arrangement must reflect the child’s best interests at the time the issue comes up. No prenup can predetermine these decisions. Courts treat any attempt to do so as contrary to public policy.
• Incentives to divorce: A clause that financially rewards one spouse for ending the marriage runs against public policy. Courts will not uphold these types of provisions.
• Illegal provisions: Any term that requires either party to participate in illegal activities is unenforceable. North Carolina law bars any prenup provision that would require conduct punishable under a criminal statute.

Other exclusions may apply.

When Will a Court Invalidate a Prenuptial Agreement?

A party can challenge a prenuptial agreement in court if one of two things is present:

Lack of voluntary consent

Both potential spouses must sign the agreement freely. North Carolina law does not define what “voluntarily” means, allowing courts to make determinations based on the full circumstances of each case.

Unconscionability and inadequate financial disclosure

The court can find that the agreement was unconscionable or unreasonably unfair to one party at the time of signing. To succeed on this ground, the challenging party must also show that, before signing, they did not receive a fair and reasonable view of the other party’s finances and liabilities. They must also show that they did not waive that right to disclosure in writing and that they did not have, and could not reasonably have obtained, adequate knowledge of the other party’s financial situation.

A party cannot invalidate a prenup based on unconscionability alone. The law requires proof that the other party did not make a fair financial disclosure. The spouse seeking to invalidate the prenup must show that they did not waive the right to disclosure in writing and had no adequate knowledge of the other party’s finances. When drafting a prenuptial agreement, full disclosure and financial transparency are required. 

Annulments may affect a prenup. If the marriage itself is later found to be void, the court can enforce the connected prenup only to the extent necessary to prevent an unfair outcome. 

Prenuptial vs. Postnuptial Agreements: What Is the Difference?

In a prenuptial agreement, the couple signs it before the wedding, and it takes effect upon marriage. In a postnuptial agreement, the spouses sign it after they are already married. Both can address similar issues, such as property division, alimony, and estate planning.

In North Carolina, postnuptial agreements are evaluated by the courts under general contract law rather than the UPAA, as the UPAA applies only to premarital agreements. A postnuptial agreement must be signed in front of a notary to be valid. If you are already married and want similar protections, a family law attorney can help. They can look at whether a postnuptial agreement makes sense for your situation.

How To Amend or Revoke a North Carolina Prenuptial Agreement

In North Carolina, you can only amend or revoke a prenuptial agreement after you are married. To be valid, any change or cancellation must be in writing, and you and your spouse must both sign the agreement. Like the original prenup, state laws do not require additional consideration for the enforceability of these amendments.

Courts will apply the same standards of voluntariness and disclosure when reviewing amendments to a prenuptial agreement. Both spouses should be fully informed and acting freely when making any changes.

Considering a Prenuptial Agreement? Seek Legal Advice From an Attorney

A prenuptial agreement can be a smart way to protect your finances and plan for the future in the event of divorce. North Carolina’s courts will look closely at how these agreements are made, ensuring that both parties signed freely and had full financial information.

A North Carolina family law attorney can help you draft an agreement, negotiate terms, and make sure all the requirements are met. FindLaw offers a directory of family or divorce lawyers in North Carolina. You can seek legal advice whether you are in Charlotte, Raleigh, Asheville, or Wilmington. Many offer free consultations. An experienced family law attorney can give you the peace of mind that your agreement is fair and reasonable under the law.