Full disclosure, I am not a Kayne Kardashian fan; however, I am a Ray Charles fan so I am dedicating this blog post to Mr. Charles.
I WANT IN THE RING, BUT WE BOTH WANT TO KEEP OUR POSSESSIONS SEPARATE, WHAT DO I DO?
Prior to a marriage there is always the option for the future spouses to enter into a pre-marital agreement, commonly called a pre-nuptial agreement or "pre-nup".
In North Carolina, pre-marital agreements are governed by Chapter 52(b) of the North Carolina General Statutes. To be enforceable a pre-marital agreement must be in writing and signed by both parties in front of a certifying officer, such as a notary public or Judge, to name a few. By statute, a pre-marital agreement is enforceable without consideration and the agreement is not effective until the parties are married. Note: Make sure you truthfully disclose your property to the other spouse as that may factor into whether or not the agreement is valid.
A pre-marital agreement will allow both parties to agree on the rights and obligations to property whether brought into the marriage (separate property) or property that is acquired during the marriage that is legally classified as marital property. This can extend to the parties agreeing in regards to dispersement of property upon death of each spouse and/or extend to the parties agreeing to have a trust made for certain property (including money). The future spouses can also agree as to whether or not spousal support will be an agreed upon amount or if it is waived all together* (* means exception).
One thing that the parties cannot legally do is waive a child's right to support via any agreement, including a pre-marital one. Future spouses can also contract with respect to any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
HOW CLOSE TO THE MARRIAGE DATE SHOULD I ASK MY FUTURE SPOUSE TO SIGN A PRE-MARITAL AGREEMENT?
Some states, but not North Carolina, require that premarital agreements be executed at least a minimum amount of time prior to the marriage. That is a direct quote from North Carolina Court of Appeals case, Howell v. Landry, 96 N.C. App 516 (1989). Howell also says, "the shortness of the time interval when combined with the threat to call off the marriage if the agreement is not executed is likewise insufficient per se to invalidate the agreement". (quoting 1 Valuation and Distribution of Marital Property, § 4.10[c] at 4-85)
Per NC caselaw, a pre-marital agreement will still be valid if signed the night before a marriage; however, that is not recommended and I would highly suggest that both parties consult with their own attorneys prior to signing a pre-marital agreement.
The main reason for this suggestion is that the following factors give a court a basis to invalidate a pre-marital agreement:
"A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) That party did not execute the agreement voluntarily; or (2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party: a. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and c. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party." NCGS 52B-7
I ALREADY TIED THE KNOT, HAS MY WINDOW FOR AN AGREEMENT PASSED?
Not necessarily, even after marriage has occurred, both parties may agree on distribution of property and spousal support in a post-nuptial agreement. Again, the document must be in writing and signed by both parties in front of a certifying officer (notary, etc.). Post-nuptial agreements are legally binding contracts between spouses that are signed after marriage but before separation or divorce.
I will caution on post-nuptial agreements however. The reason being is that North Carolina courts have decided that it is against public policy to enforce such agreement unless the parties can definitively show that there was consideration provided by each party entering into the post-nuptial agreement. Without verifiable and actual consideration provided by each party, the post-nuptial agreement will not be enforceable.
What we discussed above regarding honest and full disclosure of each party's assets is going to be applicable to a post-nuptial agreement as well. Both parties can like-wise agree to a certain amount of spousal support or waive spousal support altogether. Just like in a pre-marital agreement, neither party can waive support of a minor child in a post-nuptial agreement.
WE ENTERED INTO A VALID PRE-MARITAL AGREEMENT, NOW WHAT?
Enjoy each other's company, try not to be too much of a pain to your spouse, and relax because if you have agreed on distribution of property and debt (pre and post marital) along with spousal support and properly executed your agreement, then even if the marriage does not go the distance your agreement should.
*Nothing in this blog post constitutes the establishment of an Attorney-Client relationship and this blog post should not be construed as legal advice.