In North Carolina, both prenuptial and postnuptial agreements are legal tools used by couples to define how their assets, debts, and financial matters will be handled in the event of a separation, divorce, or even death. 

While both agreements serve similar purposes, the key difference between them lies in the timing of when they are executed. Understanding the distinction and knowing when each is appropriate can help you make the best decision for your personal and financial circumstances.

What Is a Prenuptial Agreement?

A prenuptial agreement, or “prenup,” is a legally binding contract created by a couple before they are married. This agreement outlines how financial matters will be handled during the marriage and in the event of a divorce. It can specify how assets and debts will be divided, whether spousal support will be paid, and how certain assets, such as businesses or inheritances, will be treated. 

In North Carolina, prenuptial agreements are governed by the Uniform Premarital Agreement Act (UPAA), which sets the legal standards for these contracts.

Key Features of a Prenuptial Agreement:

• Executed Before Marriage: A prenuptial agreement must be signed before the couple legally marries. Once the marriage takes place, the agreement goes into effect.
• Full Disclosure: For the agreement to be valid, both parties must fully disclose their financial situation. This means revealing all assets, debts, income, and liabilities. If one party fails to disclose important financial information, the agreement can be challenged and potentially invalidated.
• Customized Terms: A prenuptial agreement can be tailored to the specific needs of the couple. It can address a wide range of issues, including property division, spousal support, and the handling of pre-marital assets or future inheritances.
• Flexibility in Terms: Couples can also use prenuptial agreements to set terms for how marital property will be divided, how certain debts will be handled, and even how retirement benefits will be split. However, it cannot address issues like child custody or child support, as these matters must be decided based on the best interests of the child at the time of divorce.

What Is a Postnuptial Agreement?

A postnuptial agreement, or “postnup,” is similar to a prenuptial agreement, but it is created after the couple is already married. A postnup allows married couples to define how their assets and financial matters will be managed in the event of a divorce, separation, or death. 

While North Carolina law does not have a specific statute governing postnuptial agreements like it does for prenuptial agreements, postnups are generally enforceable as long as they meet the same basic legal requirements as prenuptial agreements: full financial disclosure, voluntariness, fairness, and a signed written agreement.

Key Features of a Postnuptial Agreement:

• Executed After Marriage: A postnuptial agreement is signed after the couple has already married. It may be created at any point during the marriage, whether soon after the wedding or years later.
• Same Disclosure Requirements: Just like with a prenuptial agreement, both spouses must fully disclose their financial situation for the postnuptial agreement to be valid. Failure to disclose assets, debts, or income can lead to the agreement being overturned in court.
• Can Address Changes in Circumstances: A postnuptial agreement can be especially useful if there have been significant changes in the couple’s financial situation since the marriage. For example, if one spouse inherits a large sum of money, starts a successful business, or the couple purchases valuable property, they may wish to create a postnuptial agreement to clarify how those assets will be handled in the event of a divorce.
• Similar Enforceability Requirements: As with prenuptial agreements, postnups must be entered into voluntarily, without coercion or pressure. Both parties must have a reasonable opportunity to review the terms and seek legal counsel if desired.

When Should You Consider a Prenuptial Agreement?

A prenuptial agreement is most beneficial for couples who want to define financial terms before they get married, particularly in cases where one or both spouses have significant assets or debts. Here are some situations where a prenuptial agreement may be the right choice:

• Protecting Pre-Marital Assets: If you or your spouse owns property, savings, or investments that were acquired before the marriage, a prenuptial agreement can ensure that these assets remain separate in the event of a divorce. This can be particularly important if one party has significantly more assets than the other.
• Business Ownership: If one or both parties own a business, a prenuptial agreement can help protect the business and ensure that it is not divided or negatively impacted during a divorce. This can be essential for family-owned businesses or businesses with other partners or shareholders.
• Significant Inheritances or Future Wealth: If one party expects to receive an inheritance or has significant future earnings potential (such as through intellectual property, royalties, or bonuses), a prenup can clarify how these assets will be treated in the event of a divorce.
• Debt Protection: If either party has significant pre-marital debts (e.g., student loans, credit card debt), a prenuptial agreement can help ensure that the other spouse is not held responsible for those debts in the event of a divorce.

When Should You Consider a Postnuptial Agreement?

A postnuptial agreement is ideal for couples who did not create a prenuptial agreement before marriage or whose financial circumstances have changed significantly since getting married. Here are some situations where a postnuptial agreement may be the right choice:

• Major Financial Changes: If you or your spouse has experienced a significant change in financial circumstances, such as receiving an inheritance, acquiring substantial assets, or starting a successful business, a postnuptial agreement can help protect those assets.
• Changing Roles in the Marriage: If one spouse has taken on a different financial role in the marriage, such as leaving a career to become a stay-at-home parent, a postnup can clarify how spousal support and property division will be handled if the marriage ends.
• Addressing Marital Issues: Some couples use postnuptial agreements as a way to address and resolve financial disputes or uncertainties within the marriage. By setting clear terms for property division and financial responsibilities, a postnuptial agreement can reduce conflict and provide stability.
• Clarifying Financial Responsibilities: If the couple’s financial situation has become more complex since the marriage, a postnup can help clarify how debts, investments, and joint accounts will be managed, especially in the event of a divorce.

Which Agreement Is Right for You?

The choice between a prenuptial and postnuptial agreement depends largely on your timing and circumstances. A prenuptial agreement is ideal for couples who want to plan their financial future before they marry, ensuring that both parties are protected from the outset. 

On the other hand, a postnuptial agreement is beneficial for married couples whose financial situation has evolved or for those who didn’t consider a prenup before marriage but now recognize the need for legal clarity.

Legal Requirements for Both Agreements

Whether you are considering a prenuptial or postnuptial agreement, the following requirements must be met for the agreement to be legally enforceable in North Carolina:

• Full Disclosure: Both parties must fully disclose all assets, debts, and financial obligations. Failure to do so can result in the agreement being invalidated.
• Voluntary Agreement: Both parties must enter into the agreement willingly, without any coercion, pressure, or fraud. If one party is forced into signing, the agreement can be challenged in court.
• Fairness: The terms of the agreement must not be unconscionable, meaning they cannot be excessively one-sided or unfair to one party. A court may refuse to enforce an agreement if it deems the terms to be unfair at the time of signing.

How Devan & Null Can Help

At Devan & Null PLLC, we have over 30 years of experience helping couples create prenuptial and postnuptial agreements that protect their financial interests and offer peace of mind. Whether you’re entering a marriage or already married and seeking clarity about your financial future, we work with you to craft an agreement that meets your needs and ensures that your assets are protected.

If you’re ready to create a prenuptial or postnuptial agreement, or if you have questions about how these agreements can benefit you, contact Devan & Null PLLC at 910-486-6855 to schedule a consultation. We’re here to guide you through the process with compassion and legal expertise.

Yes, in North Carolina, a prenuptial (before marriage) or postnuptial (after marriage) agreement can protect your business and personal assets in the event of a divorce. 

These agreements allow you to establish clear rules for how your assets, including your business, will be treated and divided if the marriage ends. 

By setting these terms in advance, you can help protect your financial interests and avoid the potential complications that come with dividing assets in a divorce under North Carolina’s equitable distribution laws.

How Prenuptial and Postnuptial Agreements Work to Protect Your Business

In North Carolina, marital property is subject to equitable distribution, which means that assets acquired during the marriage are divided fairly, though not necessarily equally, in the event of a divorce. 

However, with a properly drafted prenuptial or postnuptial agreement, you can exclude your business or personal assets from being classified as marital property, thereby protecting them from division.

Here’s how a prenuptial or postnuptial agreement can help protect your business:

1. Defining Separate Property: In a prenuptial or postnuptial agreement, you can specifically identify your business as separate property, which means it will not be subject to division as marital property. This is particularly important if you owned the business before the marriage, as it helps prevent the business from being classified as marital property later on. Even if your business grows during the marriage, having it defined as separate property can protect its value from being divided in a divorce.
2. Protecting Business Growth During the Marriage: In North Carolina, if a business increases in value during the marriage due to the efforts of either spouse or the use of marital funds, the increase in value may be considered marital property. However, with a prenuptial or postnuptial agreement, you can specify how any increase in the value of the business will be handled. For example, you can establish that any growth or income generated by the business will remain separate, protecting both the original value of the business and any future growth.
3. Preventing Commingling of Assets: One common issue in divorce cases is the commingling of marital and separate assets, which can make it difficult to distinguish between what belongs to each spouse. For instance, if you use marital funds to support or expand your business, part of the business may be considered marital property. A prenuptial or postnuptial agreement can set clear guidelines to prevent commingling, ensuring that any contributions made to the business using marital funds are addressed and the business remains protected.
4. Defining Spousal Rights to Business Ownership: Without an agreement, a spouse may claim a share of your business as part of the marital estate. This could potentially lead to the sale of the business or a forced buyout. A prenuptial or postnuptial agreement can specify that your spouse waives any rights to ownership, management, or control of the business, ensuring that you retain full control over its operations and ownership.

Protecting Personal Assets with a Prenuptial or Postnuptial Agreement

In addition to protecting your business, a prenuptial or postnuptial agreement can also safeguard your personal assets, including property, investments, and future earnings.

1. Excluding Personal Assets from Marital Property: Under North Carolina law, property acquired before the marriage is generally considered separate property, while assets acquired during the marriage are typically considered marital property. However, without a prenuptial or postnuptial agreement, there can still be disputes over what constitutes separate property. By specifying in your agreement that certain personal assets—such as real estate, savings, or investments—are separate, you can avoid the risk of those assets being divided in a divorce.
2. Protecting Inheritances and Gifts: In North Carolina, inheritances and gifts received by one spouse during the marriage are considered separate property. However, if these funds are commingled with marital assets (such as depositing an inheritance into a joint bank account), they may be classified as marital property. A prenuptial or postnuptial agreement can clearly outline that any inheritance or gift remains separate property, even if it is used for joint expenses or investments.
3. Clarifying Ownership of Future Earnings and Investments: For individuals who expect significant future earnings or investment returns—such as royalties, bonuses, or stock options—a prenuptial or postnuptial agreement can specify how those future earnings will be treated. You can outline that any future earnings or investments will remain your separate property, protecting them from division in the event of a divorce.
4. Handling Debts: In addition to protecting assets, a prenuptial or postnuptial agreement can also clarify how debts will be handled. If one spouse brings significant debt into the marriage, or if either spouse acquires debt during the marriage, the agreement can specify that each spouse will remain responsible for their own debts. This can help prevent one spouse from being held liable for the other’s financial obligations in the event of a divorce.

When to Consider a Prenuptial or Postnuptial Agreement to Protect Your Business and Assets

A prenuptial agreement is the right tool if you want to protect your business or personal assets before marriage. This agreement ensures that both parties enter the marriage with a clear understanding of how assets and debts will be treated, and it can prevent disputes later on.

A postnuptial agreement, on the other hand, is created after marriage and is useful if your financial circumstances change during the marriage. For example, if your business experiences significant growth, if you acquire new assets, or if your financial situation becomes more complex, a postnuptial agreement can help protect your interests moving forward.

Legal Requirements for a Valid Agreement in North Carolina

To ensure that a prenuptial or postnuptial agreement is enforceable in North Carolina, it must meet certain legal requirements:

• Full Financial Disclosure: Both parties must fully disclose their financial situation, including assets, debts, income, and liabilities. Failure to disclose financial information can result in the agreement being invalidated.
• Voluntary Agreement: Both parties must enter into the agreement willingly, without coercion or pressure. If one party is forced or pressured into signing the agreement, it can be challenged in court.
• Fairness: The agreement must not be unconscionable, meaning it cannot be so one-sided that it is unfair to one party. The court may refuse to enforce an agreement if it is deemed to be grossly unfair.
• Signed and Written: The agreement must be in writing and signed by both parties. Oral agreements or unsigned documents are not legally enforceable.

How Devan & Null Can Help Protect Your Business and Personal Assets

At Devan & Null PLLC, we have over 30 years of experience helping individuals protect their businesses and personal assets through prenuptial and postnuptial agreements. 

We understand the importance of ensuring that your financial future is secure, and we work closely with you to draft an agreement that meets your specific needs and protects what matters most to you.

We work with you to:

• Assist in identifying and valuing your business and personal assets to ensure that they are properly addressed in the agreement.
• Draft clear and enforceable terms that protect your separate property, future earnings, and business interests.
• Guide you through the process to ensure that the agreement is legally valid and reflects your goals.

If you’re looking to protect your business or personal assets, contact Devan & Null PLLC today at 910-486-6855 to schedule a consultation. Let us help you safeguard your financial future with a customized prenuptial or postnuptial agreement.

In North Carolina, full financial disclosure is a critical requirement for both prenuptial and postnuptial agreements to be valid and enforceable. 

Without full transparency about each party’s financial situation, an agreement could be challenged in court and potentially invalidated. Courts require that both spouses enter these agreements voluntarily and with a full understanding of each other’s financial standing. 

Therefore, disclosing all relevant financial information is a key component of ensuring that the agreement is fair and legally binding.

Why Financial Disclosure Is Important

The purpose of financial disclosure is to ensure that both parties are making informed decisions when entering into a prenuptial or postnuptial agreement. 

By providing full and accurate information about their assets, debts, and financial obligations, both spouses can negotiate the terms of the agreement fairly. If one spouse conceals assets or misrepresents their financial situation, it can lead to an agreement that is considered unconscionable or unfair.

In North Carolina, a prenuptial or postnuptial agreement may be deemed invalid if there was a failure to disclose essential financial information, or if one party was misled about the other’s financial condition. This is because the courts want to ensure that both parties are entering into the agreement on equal footing, with a full understanding of their financial rights and obligations.

What Financial Information Must Be Disclosed

When creating a prenuptial or postnuptial agreement, each spouse must provide a comprehensive and accurate list of their financial information. This includes disclosing assets, liabilities, income, and other financial obligations. 

Here’s a detailed breakdown of what should be disclosed:

1. Assets

Both spouses must disclose all assets they own, including:

• Real Estate: This includes primary residences, vacation homes, rental properties, and any other real estate holdings. The value of these properties should also be disclosed, along with any mortgages or liens attached to them.
• Bank Accounts: All bank accounts, including checking and savings accounts, must be disclosed. This includes both individual accounts and any joint accounts held with other parties.
• Investments: Stocks, bonds, mutual funds, and other investment accounts must be fully disclosed, along with their current values.
• Retirement Accounts: Any retirement accounts, such as 401(k)s, IRAs, pensions, or other retirement plans, must be disclosed, including the value of these accounts at the time of the agreement.
• Businesses: If one or both spouses own a business or have an ownership interest in a business, the value of the business and the spouse’s ownership interest must be disclosed. This includes any income the business generates and the business’s assets and liabilities.
• Personal Property: Significant personal property, such as valuable jewelry, vehicles, artwork, or other collectibles, must also be disclosed.
• Inheritance and Trusts: If one spouse expects to receive an inheritance or has interests in trusts, those interests should be disclosed, even if the inheritance has not yet been received.

2. Debts and Liabilities

In addition to assets, both spouses must disclose all debts and liabilities, including:

• Mortgages: Any mortgages attached to real estate must be disclosed, including the remaining balance on the loan and the terms of the mortgage.
• Credit Card Debt: Any outstanding credit card debt, whether held individually or jointly, must be disclosed.
• Loans: This includes personal loans, student loans, car loans, and any other types of loans. The remaining balance and terms of repayment should be included in the disclosure.
• Tax Liabilities: If either spouse owes back taxes or has any outstanding tax liabilities, these must be disclosed.
• Legal Obligations: Any other financial obligations, such as legal judgments, alimony or child support from previous relationships, must be disclosed.

3. Income

Both parties must provide information about their current and expected future income. This includes:

• Salaries and Wages: Each spouse’s current salary or wages from employment should be disclosed. If either spouse expects their income to increase or decrease in the near future (such as through a job promotion or career change), this should also be noted.
• Bonuses and Commissions: Any expected bonuses, commissions, or other forms of variable income must be disclosed.
• Business Income: If one spouse owns a business, they must disclose the income generated by that business.
• Investment Income: Income from investments, including dividends or interest, should also be disclosed.

4. Other Financial Obligations

Beyond assets, debts, and income, spouses should disclose any other financial obligations that may affect the agreement. These can include:

• Alimony or Child Support: If one spouse is paying or receiving alimony or child support from a previous marriage or relationship, that financial obligation must be disclosed.
• Life Insurance: If either spouse holds life insurance policies, the policy details, beneficiaries, and the amount of coverage should be disclosed.
• Pending Lawsuits: If either spouse is involved in any pending litigation or legal claims that could affect their financial standing, this should be disclosed.

What Happens If Financial Disclosure Is Incomplete or Inaccurate?

If one party fails to fully disclose their financial situation or intentionally hides assets, the prenuptial or postnuptial agreement may be deemed invalid by the court. North Carolina courts are strict about ensuring fairness in these agreements, and lack of full disclosure can be grounds for challenging the enforceability of the contract.

Here’s how incomplete or inaccurate disclosure can impact the agreement:

• Unconscionability: If the agreement is found to be grossly unfair due to the lack of financial disclosure, the court may determine that it is unconscionable and refuse to enforce it. For example, if one spouse hides significant assets and the other spouse unknowingly signs away rights to those assets, the court may view the agreement as unjust.
• Lack of Informed Consent: Prenuptial and postnuptial agreements must be entered into voluntarily, with both parties fully understanding the terms. If one spouse is not fully aware of the other’s financial situation due to incomplete disclosure, they may argue that they did not give informed consent to the agreement.
• Fraud: If a spouse deliberately conceals assets or misrepresents their financial situation, the agreement can be challenged on the grounds of fraud. If fraud is proven, the agreement can be voided.

How to Ensure Full Financial Disclosure

To ensure that your prenuptial or postnuptial agreement is enforceable, it’s essential to provide full and accurate financial disclosure. Here are some steps to help ensure compliance with North Carolina law:

• Prepare a Detailed Financial Statement: Each spouse should prepare a detailed financial statement that lists all assets, liabilities, income, and other financial obligations. This document should be thorough and accurate to avoid future disputes.
• Work with Legal and Financial Professionals: An experienced family law attorney can help you draft a prenuptial or postnuptial agreement that meets legal requirements and ensures full disclosure. In some cases, it may be beneficial to work with a financial advisor or forensic accountant to verify the accuracy of the information provided.
• Be Transparent: Both spouses should approach the process with honesty and transparency. Even if certain assets or debts seem minor, it’s important to disclose them to avoid potential challenges to the agreement later on.

How Devan & Null Can Help You with Financial Disclosure in Prenuptial and Postnuptial Agreements

At Devan & Null PLLC, we understand how crucial full financial disclosure is to creating a valid and enforceable prenuptial or postnuptial agreement. 

With over 30 years of experience in North Carolina family law, Attorney Laura Devan will guide you through the process, ensuring that both parties fully understand their rights and obligations. We help you gather and disclose all necessary financial information to protect your agreement from future challenges.

We work with you to:

• Assist in preparing a comprehensive financial statement to ensure full and accurate disclosure.
• Work with financial experts to verify asset values and protect your interests.
• Draft an agreement that reflects your financial goals while complying with North Carolina law.

If you’re ready to create a prenuptial or postnuptial agreement or need help ensuring full financial disclosure, contact Devan & Null PLLC today at 910-486-6855 to schedule a consultation. We’re here to provide expert guidance and ensure that your agreement is legally sound and enforceable.

Yes, in North Carolina, both prenuptial and postnuptial agreements can be modified or revoked after they have been signed, provided that both parties agree to the changes. 

However, the process must be handled carefully to ensure that any modifications or revocations are legally valid and enforceable. As with the original agreement, modifications or revocations must meet certain legal requirements under North Carolina law to be recognized by the courts.

Legal Framework for Modifying or Revoking a Prenuptial or Postnuptial Agreement

Under North Carolina’s Uniform Premarital Agreement Act (UPAA), which governs prenuptial agreements, and general contract law principles applicable to postnuptial agreements, both types of agreements are considered legally binding contracts between spouses. 

As such, they can be modified or revoked in the same way that other legal contracts can be altered—by mutual consent.

The key factors in modifying or revoking these agreements are as follows:

1. Mutual Agreement: Both parties must agree to any changes or revocation of the agreement. A prenuptial or postnuptial agreement cannot be unilaterally modified or canceled by one spouse. The agreement must be voluntary, and both parties must consent to any changes or termination of the original terms.
2. Written Document: Any modifications or revocations to a prenuptial or postnuptial agreement must be made in writing. Oral agreements to change or revoke the terms of a prenuptial or postnuptial agreement are not enforceable under North Carolina law. The new written document must clearly outline the changes being made or the intention to revoke the agreement entirely.
3. Signed by Both Parties: The modification or revocation document must be signed by both parties. Just like the original prenuptial or postnuptial agreement, any amendments must include the signatures of both spouses to indicate their consent and understanding of the new terms.
4. Voluntary and Without Coercion: The same legal requirements that applied to the original prenuptial or postnuptial agreement also apply to any modifications or revocations. The changes must be made voluntarily and without any form of coercion, pressure, or fraud. If one party feels pressured into agreeing to the modification, the new agreement could be challenged in court.
5. Full Disclosure: If the modification or revocation involves significant changes to the financial terms of the agreement, both parties may need to fully disclose their current financial situation. This is particularly important if the spouses’ financial circumstances have changed since the original agreement was signed. Failing to disclose significant financial changes could lead to the agreement being challenged as unfair or unconscionable.

Why You Might Want to Modify or Revoke a Prenuptial or Postnuptial Agreement

There are several reasons why a couple may choose to modify or revoke their prenuptial or postnuptial agreement. These can include changes in financial circumstances, changes in the couple’s relationship, or the desire to adjust the terms of the agreement to better reflect their current situation. 

Here are some common reasons:

1. Change in Financial Circumstances

A significant change in the financial circumstances of one or both spouses may prompt a desire to modify the terms of the agreement. 

For example, if one spouse experiences a substantial increase in income, inherits a large sum of money, or starts a successful business after the original agreement was signed, the couple may want to revisit the agreement to adjust how those assets will be treated in the event of a divorce.

In such cases, the couple can modify the agreement to clarify how new assets will be handled or to reflect updated financial information that was not available at the time of the original agreement.

2. Birth of Children

Many couples choose to modify their prenuptial or postnuptial agreements after the birth of children. 

While these agreements cannot directly address child custody or child support—because those matters must be decided based on the best interests of the child at the time of divorce—couples can make changes to their financial arrangements to account for the new responsibilities that come with having children.

For instance, the couple may wish to update the agreement to reflect changes in financial obligations, such as who will pay for the child’s education or medical expenses, or to provide additional spousal support if one spouse leaves the workforce to care for the children.

3. Reconciliation After Separation

If a couple has separated and is considering reconciliation, they may choose to modify their postnuptial agreement as part of the reconciliation process. This could involve updating the financial terms to reflect new circumstances or creating provisions for how assets will be divided if the marriage eventually ends in divorce. 

A modified postnuptial agreement can provide clarity and security as the couple moves forward with their reconciliation.

4. Addressing Unforeseen Changes

Prenuptial and postnuptial agreements are typically created based on the couple’s current financial and personal situation at the time of signing. However, life can bring unforeseen changes, such as job loss, major health issues, or a sudden increase in wealth. 

If these circumstances arise, it may be necessary to modify the agreement to ensure that both parties are still protected and that the terms remain fair.

5. Deciding to Revoke the Agreement Entirely

In some cases, couples may decide that they no longer need or want the prenuptial or postnuptial agreement and choose to revoke it entirely. This can happen if the couple’s relationship has strengthened and they no longer feel the need for a formal agreement or if the original reasons for creating the agreement are no longer relevant. 

In such cases, the couple can create a written document that clearly states their intention to revoke the agreement.

Steps to Modify or Revoke a Prenuptial or Postnuptial Agreement

If you and your spouse decide to modify or revoke your prenuptial or postnuptial agreement, the process typically follows these steps:

1. Consult an Attorney: Both spouses should consult their own attorneys to ensure that the modification or revocation is handled properly. Each spouse should have independent legal representation to ensure that their interests are protected and that they fully understand the implications of the changes.
2. Draft the New Agreement: A new written document must be created to reflect the changes to the agreement. This could be an amended agreement that includes the modified terms or a written document that revokes the agreement entirely. The document should clearly outline what is being changed or canceled.
3. Full Disclosure (If Necessary): If there have been significant changes in financial circumstances since the original agreement was signed, both spouses may need to provide full financial disclosure. This ensures that both parties are entering into the new agreement with a full understanding of each other’s financial situation.
4. Sign the Agreement: Both parties must sign the modified agreement or revocation document. The signatures must be voluntary, and neither party should feel coerced or pressured into agreeing to the changes.
5. Ensure Legal Formalities Are Met: Make sure the modified or revoked agreement complies with North Carolina’s legal requirements. The document must be in writing, signed by both parties, and free from any indications of fraud, duress, or undue influence.

What Happens if One Party Wants to Modify or Revoke the Agreement, but the Other Does Not?

Since prenuptial and postnuptial agreements are contracts, they cannot be modified or revoked without the consent of both parties. If one spouse wants to change or cancel the agreement, but the other spouse does not agree, the original agreement will remain in effect unless a mutual agreement is reached.

In such cases, it’s important to work with an experienced family law attorney to negotiate a possible solution. Mediation or legal counseling may be useful tools to help both parties reach an agreement on how to handle the changes.

How Devan & Null Can Help with Modifying or Revoking Prenuptial and Postnuptial Agreements

At Devan & Null PLLC, we have over 30 years of experience helping clients with prenuptial and postnuptial agreements in North Carolina. 

Whether you’re looking to modify or revoke an existing agreement, or you’re navigating complex financial changes, we’re here to guide you through the process with expert legal advice.

We work with you to:

• Review your current agreement to determine the best course of action for modifying or revoking the terms.
• Draft a new agreement that reflects your current financial situation and goals.
• Ensure all legal requirements are met so that the modified or revoked agreement is enforceable and valid.
• Protect your rights and interests during negotiations, ensuring that the new terms are fair and mutually agreed upon.

If you’re considering modifying or revoking your prenuptial or postnuptial agreement, contact Devan & Null PLLC at 910-486-6855 to schedule a consultation. We help you navigate the process with confidence and legal expertise, ensuring that your agreement reflects your current needs and protects your future.

In North Carolina, prenuptial and postnuptial agreements are generally enforceable, provided they meet the state’s legal requirements. 

However, simply having an agreement in place doesn’t automatically mean it will be upheld by the court if challenged during a divorce. Several factors can influence whether your prenuptial or postnuptial agreement holds up in court. 

To ensure enforceability, the agreement must be fair, voluntary, and comply with specific legal standards.

Legal Requirements for Enforceability in North Carolina

In North Carolina, prenuptial agreements are governed by the Uniform Premarital Agreement Act (UPAA), while postnuptial agreements are treated under general contract law principles. For either type of agreement to hold up in court, it must meet the following requirements:

1. The Agreement Must Be in Writing and Signed by Both Parties

North Carolina law requires that both prenuptial and postnuptial agreements be in writing and signed by both spouses. Verbal agreements or oral modifications to a written agreement will not be enforced. The written agreement should be clear, specific, and detailed, outlining the financial rights and obligations of each party in the event of a divorce. Both parties must sign the document to signify their consent.

2. Full Financial Disclosure

For a prenuptial or postnuptial agreement to be valid, both spouses must provide full and accurate disclosure of their financial situation at the time the agreement is made. This includes disclosing all assets, debts, income, and liabilities. If one spouse conceals significant financial information or misrepresents their financial situation, the agreement could be deemed invalid.

In the case of a challenge, the court will examine whether both parties entered into the agreement with full knowledge of each other’s finances. If one party can prove that financial information was not fully disclosed, the agreement may be considered unfair or fraudulent, and the court could invalidate it.

3. The Agreement Must Be Voluntary and Free of Coercion

Both parties must enter into the prenuptial or postnuptial agreement voluntarily. This means that neither party should be pressured, forced, or coerced into signing the agreement. If one party was under duress or felt pressured to sign the agreement—such as being presented with the agreement shortly before the wedding—this could be grounds for the court to invalidate it.

For example, if a prenuptial agreement is presented to one spouse just days before the wedding with the ultimatum that the wedding will be called off unless it’s signed, a court may find that the agreement was not entered into voluntarily. The court will also consider whether each party had enough time to review the agreement and seek independent legal counsel.

4. The Agreement Must Be Fair and Not Unconscionable

In North Carolina, courts will not enforce prenuptial or postnuptial agreements that are considered unconscionable. An agreement is considered unconscionable if it is grossly unfair or heavily one-sided in favor of one spouse. 

For example, if an agreement leaves one spouse with virtually no assets or support while the other spouse retains all financial benefits, the court may determine that the agreement is unconscionable.

At the time of signing, the agreement should reflect a fair and equitable division of assets or at least demonstrate that both parties understood and agreed to its terms. If one spouse can prove that the agreement was grossly unfair when it was made, the court may refuse to enforce it.

Courts may also look at whether the agreement has become unfair over time due to changes in circumstances. 

For example, if the couple’s financial situation has changed significantly since the agreement was signed, or if one spouse becomes financially dependent on the other during the marriage, the court may consider whether enforcing the agreement would cause undue hardship to one party.

5. The Agreement Cannot Waive Certain Rights

While prenuptial and postnuptial agreements can address most financial matters, there are certain rights that cannot be waived in these agreements under North Carolina law:

• Child Support and Child Custody: Prenuptial and postnuptial agreements cannot include provisions that dictate child custody or child support. The court retains the authority to make decisions about these matters based on the best interests of the child at the time of divorce. Even if the couple agrees in the prenuptial or postnuptial agreement on child custody or support terms, those provisions will not be enforced by the court.
• Spousal Support Waivers: While North Carolina allows prenuptial agreements to include provisions about spousal support (alimony), such provisions may be subject to scrutiny by the court. If a waiver of spousal support would result in one spouse experiencing extreme financial hardship while the other is financially secure, the court may set aside the spousal support waiver as unfair. Postnuptial agreements, in particular, may be closely examined to ensure they do not unfairly deprive one spouse of financial support.

Factors That Could Invalidate a Prenuptial or Postnuptial Agreement

Even if a prenuptial or postnuptial agreement meets the general legal requirements, there are specific circumstances under which the agreement could be invalidated during a divorce:

1. Failure to Meet the Legal Formalities: If the agreement was not properly signed, not put in writing, or involved incomplete financial disclosure, the court may invalidate it. Similarly, if the document lacks clarity or includes vague terms, the court may have difficulty enforcing the agreement.
2. Coercion or Duress: If one spouse can prove that they were pressured or coerced into signing the agreement, the court will not enforce it. Evidence of coercion might include presenting the agreement at the last minute or threatening to cancel the wedding if it’s not signed.
3. Fraud or Misrepresentation: If one party deliberately hid assets, income, or debts when the agreement was made, the court may find that the agreement is fraudulent and refuse to enforce it. The agreement must be based on full and truthful disclosure by both parties.
4. Unconscionability: If the agreement is heavily one-sided or grossly unfair, the court may rule that it is unconscionable and refuse to enforce it. Courts are particularly concerned with ensuring that agreements do not place one spouse in financial hardship or deprive them of their basic financial rights.
5. Change in Circumstances: Even if the agreement was fair at the time it was signed, significant changes in circumstances—such as illness, disability, or a major change in financial status—may lead the court to reassess its enforceability. If enforcing the agreement would cause serious financial harm to one spouse due to unforeseen circumstances, the court may refuse to uphold certain provisions.

Steps to Ensure Your Prenuptial or Postnuptial Agreement Will Be Upheld

To increase the likelihood that your prenuptial or postnuptial agreement will hold up in court, it’s essential to follow the legal guidelines and best practices for creating an enforceable contract:

1. Ensure Full Financial Disclosure: Be transparent about all your assets, debts, and income. Hiding or misrepresenting financial information is one of the most common reasons agreements are invalidated.
2. Seek Independent Legal Counsel: Each spouse should have their own attorney review the agreement before signing. This ensures that both parties fully understand the terms and that the agreement is fair and voluntary.
3. Sign the Agreement Well in Advance: Avoid presenting a prenuptial agreement right before the wedding. Ideally, the agreement should be signed well in advance to avoid any claims of coercion or duress.
4. Include Clear and Specific Terms: The agreement should be detailed and specific in outlining the division of assets, liabilities, and any provisions for spousal support. Avoid vague language that could lead to disputes or misunderstandings later.
5. Review and Update the Agreement: If your financial situation changes significantly, consider updating the prenuptial or postnuptial agreement to reflect new circumstances. Regularly reviewing the agreement ensures that it remains fair and relevant over time.

How Devan & Null Can Help Ensure Your Agreement Holds Up in Court

At Devan & Null PLLC, we have over 30 years of experience drafting and reviewing prenuptial and postnuptial agreements in North Carolina. 

We understand the legal requirements necessary to ensure that your agreement is enforceable, fair, and tailored to your specific needs. 

Our team guides you through the process, from full financial disclosure to ensuring that the agreement is voluntary and clear.

We work tirelessly to:

• Help you understand the legal implications of a prenuptial or postnuptial agreement and ensure that your rights are protected.
• Draft a comprehensive agreement that meets North Carolina’s legal standards and reflects your financial goals.
• Review your agreement regularly to ensure that it remains fair and enforceable, especially in light of changing financial circumstances.

If you’re considering creating or updating a prenuptial or postnuptial agreement, or if you’re concerned about the enforceability of your current agreement, contact Devan & Null PLLC at 910-486-6855 to schedule a consultation. Let us help you protect your financial future with a legally sound and enforceable agreement.