North & South Carolina Prenuptial & Postnuptial Agreement Attorneys

Understanding Prenuptial & Postnuptial Agreements in the Carolinas 

Prenuptial and postnuptial agreements play a crucial role in defining the rights and obligations of spouses in the event of a divorce or separation. To be considered valid and enforceable, these documents must meet certain legal requirements. Additionally, while prenuptial and postnuptial agreements can do many things, they also have several limitations that you should be aware of. 

At Collins Family & Elder Law Group, we assist clients in North Carolina and South Carolina with an array of family law matters, including prenuptial and postnuptial agreements. A prenuptial or postnuptial agreement can provide you with a strong sense of stability and security, which can serve as a powerful foundation for your marriage. Continue reading to learn more, or contact us directly to request a consultation with one of our North and South Carolina prenuptial and postnuptial agreement attorneys.

You can reach us online or by phone at (704) 289-3250. 

What Is a Prenuptial Agreement? 

In North Carolina, a prenuptial agreement, also known as a premarital agreement, is defined as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. The agreement must be in writing and signed by both parties before the wedding takes place. 

Prenuptial agreements cover various aspects of marriage and divorce, such as: 

• Asset and property division 
• Each spouse's rights to individual and marital property
• Property management
• Spousal support/alimony

North Carolina requires that any amendments to the prenuptial agreement also be in writing and signed by both spouses. Most prenuptial agreements in North Carolina are upheld, provided they meet these requirements. However, the court may invalidate a prenuptial agreement if it is found to be unconscionable or if either party entered into the agreement involuntarily or under duress.

In South Carolina, prenuptial agreements are also recognized and governed by specific laws. These agreements are known as antenuptial agreements and are defined as contracts entered into before marriage to determine the rights and obligations of the spouses in the event of a divorce or death. 

To be valid, a prenuptial agreement in South Carolina must be in writing, signed by both parties, and notarized. It should also include a fair and reasonable disclosure of each party's assets and liabilities. If a prenuptial agreement fails to meet these requirements or if it is found to be unconscionable or obtained through fraud or coercion, the court may refuse to enforce it.

What Is a Postnuptial Agreement? 

A postnuptial agreement is a contract entered into by spouses after marriage to address similar issues as a prenuptial agreement. 

In North Carolina, postnuptial agreements are generally enforceable if they meet the same requirements as prenuptial agreements, such as being in writing and signed by both parties. However, courts may be more cautious when scrutinizing postnuptial agreements due to the potential for one spouse to exert undue influence over the other. Therefore, it is important that both parties enter into the agreement voluntarily and with full understanding.

In South Carolina, postnuptial agreements are also recognized but have additional validity requirements. These agreements must be fair, reasonable, and disclose all assets and liabilities of both parties. The court will review the circumstances surrounding the execution of the agreement, including whether there was any coercion or duress. If a postnuptial agreement in South Carolina is found to be unconscionable or obtained through fraud, coercion, or lack of disclosure, the court may refuse to enforce it.

What Are the Benefits of Signing a Prenuptial or Postnuptial Agreement? 

Though these documents are often thought of as being only for the very wealthy, this is far from the truth. Regardless of the size of one’s estate, their net worth, or the overall value of their assets, everyone can benefit from signing a prenuptial or postnuptial agreement. 

Some of the benefits of signing a prenuptial or postnuptial agreement include: 

• Asset Protection: Prenuptial and postnuptial agreements allow couples to protect their individual assets acquired before and during the marriage. By clearly defining separate and marital property, these agreements can help prevent disputes and ensure that each party retains their respective assets in the event of a divorce or separation.
• Clarification of Financial Rights and Responsibilities: These agreements provide an opportunity for couples to discuss and establish financial expectations, responsibilities, and rights during the marriage. This includes matters such as income, debt, property division, spousal support, and inheritance rights. Having a clear understanding of these matters can minimize conflicts and promote transparency in the relationship.
• Preservation of Family Wealth: Prenuptial and postnuptial agreements can be particularly beneficial when one or both parties have significant family wealth or inheritances. These agreements can help safeguard family assets and protect them from being subject to division in the event of a divorce.
• Reduction of Conflict and Stress: By proactively addressing potential issues and concerns before entering into marriage or during the course of the marriage, prenuptial and postnuptial agreements can help reduce conflict and uncertainty during the divorce process. Couples who have already established the terms of asset division and other financial matters are more likely to experience a smoother and less contentious divorce process.
• Preservation of Business Interests: For individuals who own businesses or have professional practices, prenuptial and postnuptial agreements can help protect those business interests from being subject to division in the event of a divorce. This can be especially valuable to safeguard the continuity and viability of the business.
• Safeguarding Children's Interests: Prenuptial and postnuptial agreements can address issues related to children from previous relationships or anticipated children. These agreements can establish child support obligations, inheritance rights, and other provisions that protect the interests of the children involved.

What Is Not Covered by Prenuptial & Postnuptial Agreements?

Though prenuptial and postnuptial agreements in North and South Carolina can be used to cover a wide range of matters—such as marital vs. separate properties, the financial responsibilities of each spouse, and how assets will be divided in the event of a divorce or legal separation—they cannot legally cover certain other matters. Most notably, these documents cannot cover issues of child custody or support.

In both North and South Carolina, child custody is based on the child’s best interests, as determined (or reviewed) by the court. Many factors are involved in determining child custody, including the child’s relationship with each parent, each parent’s ability to care for the child’s needs, and more. A prenuptial or postnuptial agreement cannot overrule these factors.

Additionally, child support in North Carolina and South Carolina is determined based on set calculations and guidelines. Parents may not use a prenuptial or postnuptial agreement to circumvent or otherwise go outside these set rules when determining child support.  

When Is a Prenuptial or Postnuptial Agreement Considered Invalid? 

In both North Carolina and South Carolina, courts may invalidate prenuptial and postnuptial agreements under certain circumstances. 

Factors that might lead a court to invalidate such agreements include:

• Lack of Voluntary Consent: If either party can prove that they were forced, coerced, or influenced to sign the agreement against their own free will, the court may deem the agreement invalid.
• Unconscionability: If a prenuptial or postnuptial agreement is found to be grossly unfair or one-sided, the court may refuse to enforce it. The agreement should provide reasonable provisions for both parties.
• Lack of Full Disclosure: Both states require full disclosure of assets and liabilities when entering into these agreements. If one party fails to disclose or hides important financial information, the court may consider the agreement invalid.

Additionally, if the agreement does not meet the necessary legal requirements, such as being in writing, signed by both parties, and/or notarized, the court may refuse to enforce it.