The Difference Between Post and Pre-Nuptial Marital Agreements

Although premarital agreements (“prenups”) and separation agreements are common in this state, North Carolina also authorizes Post-Nuptial Agreements (“postnuptial”).  Postnuptial in Mecklenburg and Union County primarily deal with property issues and are used, for example, in situations where the parties want to separate but cannot afford to have two households and pay a mortgage. The postnuptial can provide a method of handling property issues until the parties hopefully enter into a separation agreement resolving all the other problems.

How does a postnuptial agreement work?

N.C.G.S § 52-10 states:

“…married persons may, with or without a valuable consideration, release, and quitclaim such rights which they might respectively acquire or may have acquired by marriage in the property of each other; and such releases may be pleaded in bar of any action or proceeding for the recovery of the rights and estate so released.”

Ok, let’s break this down.  Post-Nuptial Agreements could operate the same and have the same effects on the property as a premarital (prenuptial) agreement if the parties were unable to enter into an appropriate agreement before the wedding ceremony, except that unlike a premarital agreement, a Post-Nuptial Agreement cannot waive alimony.

A Post-Nuptial Agreement is therefore utilized mostly for estate planning purposes and regulating the party’s responsibilities and relationships. A typical use of a Pre-Nuptial agreement is in the circumstances where parties want to separate but cannot afford to have two households and pay a mortgage.  The post-nuptial agreement can provide for the method of placing the house for sale, the distribution of the costs of the house pending sale and the distribution of the net proceeds upon sale.  Of course, right before closing and the subsequent vacating of the home, the parties hopefully enter into a separation agreement resolving all the other issues associated with separation.

How do I create a postnuptial agreement?

The Post-Nuptial Agreement must be in writing and executed before a certifying officer, usually a notary public.  Like all agreements, the terms may not be against the public policy of North Carolina and the execution of the Post-Nuptial Agreement cannot be obtained through coercion, threats, undue influence or fraud.  Work with a qualified family law attorney to ensure that the agreement is drafted correctly, or to get legal advice regarding a contract that has been proposed to you.