A North Carolina postnuptial agreement is a contract between married spouses outlining asset distribution in case of divorce or death, different from a prenuptial agreement (“prenup“) signed before marriage.
Postnuptial agreements, due to their timing, have extra enforcement requirements. Both agreement types can help couples bypass the uncertainties of divorce by pre-establishing asset division rules.
Legal Considerations
- Signing Requirements: Agreements need to be written, signed by both parties, and notarized or witnessed by a judge (§ 52-10).
- Dividing Property: North Carolina law usually deems a 50/50 distribution of marital assets equitable, but it allows for an unequal split if a 50/50 division is deemed unjust (§ 50-20).
Understanding Postnuptial Agreements in North Carolina
Statute of Limitations
Claims regarding postnuptial agreements due to fraud or mistake must be made within three years, starting from when the facts of the fraud or mistake were discovered.
§ 52-2 – Contractual Capacity of Married Persons
Married individuals have the right to enter contracts affecting their property as if they were single, subject to specific statutes and General Assembly regulations.
§ 52-10 – Marital Contracts and Releases
(a) Contracts between spouses that align with public policy are recognized. Spouses or engaged individuals can release property rights to each other, which can defend against claims on the released property. However, agreements made during marriage cannot alter real estate interests for more than three years unless written and officially acknowledged.
(b) Acknowledgment of such contracts must be made before designated officers, including notaries and court clerks, who are not parties to the contract.
(c) Judgments consented to by both spouses in court do not fall under this section’s limitations.
§ 50-20(d) – Distribution of Property
Spouses may agree on property distribution before, during, or after marriage through a written, acknowledged agreement, following specific statutes. Such agreements are enforceable.
