With a marital engagement comes all of the fun conversations about wedding decorations, wardrobe, and celebrations. Yes, the party is going to be a blast; however, as your friendly family law attorney, let’s discuss the legal implications that occur on the day that you share “I do’s.”

When a marriage occurs, the law recognizes three parties as part of the marriage: spouse 1, spouse 2, and the state. Hence the need for a “license” to legally effectuate a marriage. When the spouses share their affirmations to be a wedded couple, the state via the law imposes various obligations and liabilities upon both spouses. What are these obligations and liabilities? The obligation receiving the most attention is a spouse’s duty to financially support the other spouse. Although historically imposed upon a husband due to a wife’s limited legal abilities (yes, we are looking at the times before women were recognized by the law to be competent to “earn” an income and “own” money), states now recognize a mutual duty to financially support. As a result, Alimony can be a highly contested and litigated matter should divorce occur. Other obligations and liabilities assumed on the wedding day include: the right of consortium (i.e. companionship), the duty to provide domestic services, the right of domicile (i.e. that spouses live together under the same roof), testimonial privileges, and estate rights.

What if you want your marriage to look different than what the state defines as a marriage? In comes the Prenuptial Agreement (also known as the Premarital Agreement under North Carolina law).

Here are 5 common items addressed in Prenups:

1.      Business Interests – If you have created a business prior to marriage or if you would like to create a business in the future, a Prenuptial Agreement can address how business ownership interests are shared between spouses or maintained as one spouse's separate property. Otherwise, business interests may be subject to Equitable Distribution under North Carolina law.

2.      Real Property – Although purchases prior to the date of marriage generally preserve a spouse's separate ownership, marital interests may be created if real property's value increases by any active efforts during the marriage. For example: post-date of wedding mortgage payments may create a marital interest in real property. In a Prenuptial Agreement, soon-to-be spouses can clarify marital and separate interests.

3.      Financial Interests for Children – You may have heard cautionary tales where a step-parent gets "the fortune" to the exclusion of the children from a previous marriage. At times, existing laws often lead to undesired results. To ensure protection of financial interests for your children, your Prenuptial Agreement can work alongside your Estate Planning documents.

4.      Family Activities and Responsibilities – In addition to financial interests, a Prenuptial Agreement can address the division of family activities with minimum or maximum participation thresholds. Common activities include: religious activities, "workaholic" restrictions, watching sports, hosting socials, or attending therapy sessions. If there are concerns about substance abuse or infidelity, a Prenuptial Agreement can also address any consequences that result.

5.      “Your” Unique Requests - Do you have really strong beliefs or non-negotiables? Do not let those things get in the way of the possibility of a wonderful marriage. Let a Prenuptial Agreement do the heavy lifting by addressing your unique requests. For example: You may want to preserve your relationship with "your" Financial Advisor regardless if they are assisting on separate or marital financial interests. Or maybe you want to ensure that your spouse will support your goals of buying an expensive sports car or regular international travel. The answer: a Prenuptial Agreement.

Each state has laws that govern how monies, assets, and debts are divided in the event of a divorce without a Prenuptial Agreement in place. Those laws are not specific to your situation though. Should you trust the legal system with your family's affairs, you may not like the result.

If you would like to learn more about Prenuptial Agreements, our Modern Legal team is here to help. 

Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country. 

Written by: Theresa E. Viera