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How do I ensure my premarital agreement is enforceable?

by | May 9, 2022 | Premarital Agreements

There are many reasons to have a premarital agreement: there may be substantial assets at stake; one party might be starting a business they believe will be successful; it is a second marriage and they need to protect their interests; or the sides simply want to keep their assets separate and have a clear idea as to what they will walk away with if the marriage ends in divorce. Regardless of the reason, it is important for North Carolina couples who are either preparing to get married or are moving forward with a divorce to understand what might sabotage the agreement and render it unenforceable.

Reasons why a premarital agreement might be unenforceable

The obvious objectives for a premarital agreement is to detail how property is divided, how much spousal support will be paid, how long the receiving spouse will get support and more. In short, it provides predictability. If there are missteps or issues arise that make it unenforceable, it can lead to dispute and acrimony while costing significant time and money that the couple sought to avoid with the agreement.

There are basics that must be in place when the agreement is created and signed. In some instances, one party coerced the other to sign the agreement. If this is alleged, it could be unenforceable. Fairness is also analyzed. Under the law, unfairness is referred to as unconscionability. This could be because the person who entered the marriage with fewer assets did not have a reasonable understanding of what the other person owned or owed. It might be because they did not waive the right to have this information.

Spousal support can also be part of the agreement, but if it sets a limit on it or eliminates it entirely and the supported spouse will then need public assistance, it could lead to a court ordering the payment of support no matter what the agreement says.

Both parties should have help with premarital agreements

The primary goal is to create marital agreements that will be upheld, but they must also be fair and adhere to the law. That requires experienced assistance. If there was an agreement in place and either side thinks it should not be enforced, this too will warrant professional help. Having this guidance is essential and should be known to try and handle these complex concerns.