Legal Corner: Prenups and separation agreements


Last week, the Legal Corner discussed the minimum requirements for obtaining an absolute divorce. Before we dive deeper into some of the issues that are faced after filing for divorce, let’s cover the differences between prenuptial and post-separation agreements, and some of their advantages.

A prenuptial or premarital agreement is a written agreement entered into by a couple engaged to be married. This type of agreement outlines how both parties have agreed to separate any property owned by one of the spouses or property owned by both spouses upon divorce or death.

Generally, premarital agreements settle financial matters between the spouses and describe the rights each spouse will have in the control of certain property, for example, how or when it is sold, transferred or leased. In most cases, this type of agreement is used to ensure that separate property owned by each prospective spouse prior to the marriage remains separate and apart and under that spouse’s individual control during the marriage and upon divorce.

In order for a premarital agreement to be valid, it has to be executed between soon-to-be spouses, and has to be made in contemplation of marriage. The premarital agreement must be in writing and signed by both parties, and in certain cases it may be necessary to have the signatures notarized for legal purposes. The agreement will only take effect once the couple has officially married.

Moreover, premarital agreements can address spousal support, insurance policies and the creation of will and trusts. Additionally, after the couple marries, the premarital agreement can be amended or terminated only if both parties agree in writing.

A separation agreement serves a similar purpose as a premarital agreement. However, it is a contract between a husband and wife that is executed after marriage and once the parties have separated. This type of agreement lists the terms under which both parties will live separate and apart, prior to receiving their official divorce decree.

In order for a separation agreement to be valid, it must be in writing and created between a married couple upon separation of the marital relations. Furthermore, both parties must sign the agreement and have their signatures notarized by a third party.

A separation agreement will address matters such as spousal and child support, child custody and the division of the married couple’s property. Both parties have the ability to agree to the terms of the separation agreement without the need to file any court proceedings. However, if both parties are unable to agree to all the terms, then either party may file a complaint within the district civil court and allow a judge to determine the conditions of the agreement.

As with any signed legal document or court order, if either party fails to comply with a legal premarital or separation agreement, a complaint maybe filed in District Court and the breaching party can be forced to comply by the court.

Please remember that this information is only meant to inform our readers. This article does not include all of the detailed laws and requirements related to prenuptial and premarital or separation agreements.

If you have any additional questions about North Carolina laws pertaining to legal separation requirements or the difference between a premarital or separation agreement or how to create these documents, please consult an attorney. As always: Be informed. Be prepared.

Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com.

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