Resolving Concerns Through Private Contracts
We often hear from prospective clients that they want to resolve their family law disputes outside of a courtroom. At Donna Ambler Davis, PC, our experience tells us that it is possible to resolve these matters outside of court by private contract if both parties are committed to voluntarily exchange financial documents and information, engage in an open dialogue about financial needs and expectations of both parties and their children, negotiate in good faith, and compromise when appropriate. Under North Carolina law, parties can effectuate contracts prior to marriage, during the marriage, or after separation into different residences.
At Donna Ambler Davis, PC, we view prenuptial agreements as good planning. A prenuptial agreement (also called an antenuptial agreement or a premarital agreement and often referred to as a “prenup” for short) is a contract that a couple may enter into prior to marriage. A prenuptial agreement specifies and determines the legal status of assets and debts owned by the respective parties prior to and acquired during the marriage, as well as what happens in the event that the marriage ends. Prenuptial agreements are intended to resolve property and financial issues in a predetermined way agreed upon by the parties prior to marriage. This certainty can avoid expensive litigation in the future if the parties decide to end their marriage and have different opinions and emotions about how property should be divided. Prenuptial agreements can also include a waiver of alimony and spousal support but cannot include provisions regarding child custody or child support issues.
While not every couple might have a presently apparent reason for a prenuptial agreement, we recommend a premarital consultation with one of our attorneys as good preparation during the engagement period to review the legal rights of the prospective parties prior to and [worst case scenario] subsequent to the pending marriage. This is especially true when both or one of the parties have children from a prior relationship or marriage.
Understandably, many people are reluctant to bring up the idea of a prenuptial agreement with their prospective spouse and unfortunately the request about one is often not well-received. In our opinion, prenuptial agreements should become more normative and should be used more often. It is our experience that couples who are open to frank discussion about these issues prior to marriage find the process to be engaging and informative, rather than adversarial. Our team will advise you as to how marriage will affect your legal rights with regard to personal and separate wealth, existing and expected inheritance, real and personal property acquired before and during marriage, and alimony and/or spousal support expectations or obligations.
If you are planning to get married, we can help you build a prenuptial agreement to stand the test of time. This agreement is not only for protecting your treasured assets if you divorce or separate, but it can also be a valuable method for establishing clear communication between you and your spouse.
A postnuptial agreement (known as a “postnup”) is very similar to a prenuptial agreement, but the couple enters into the agreement during the marriage. Couples may enter into a postnuptial agreement to define their wishes with regard to property they brought into the marriage, or to specify how property acquired during the marriage (marital property) would be divided in the event of a divorce. It is especially useful when one spouse has children from a previous marriage, to ensure certain assets pass to those children. It can protect a spouse who has stopped working to be the primary caretaker at home, to make sure they are financially secure in the event the parties divorce in the future. This is not meant to be an all-inclusive list of the functions a postnuptial agreement can serve. Some states will not enforce a postnuptial agreement unless it was entered into in a certain way, which is why you should not enter into a postnuptial agreement without fully understanding all the provisions and implications. It is for this reason you should consult the experienced attorneys at Donna Ambler Davis, PC, before entering into such an agreement. Our attorneys will use their expertise to advise you so that you can make the best decision for you depending on your unique circumstances.
A separation agreement is a contract in which married parties resolve issues between them, such as child custody, child support, alimony or spousal support, equitable distribution (distribution of assets including real property and personal property and distribution of marital debts). Separation agreements are private documents done outside of court and are not court orders. If one party fails to abide by the terms of the separation agreement, however, separation agreements, like all valid contracts, are enforceable by a court in a breach of contract action. Depending on the provisions and content of a separation agreement, some of the provisions may be modifiable by a Court. For the most part, the contents of separation agreements are not modifiable by a court. In all cases it is the best practice to have an experienced, qualified family law attorney review your specific situation to determine the specific provisions of a separation agreement necessary to protect your legal rights. A separation agreement is not a divorce nor a contract to get divorced. In North Carolina, a court order is needed to grant a divorce.
At Donna Ambler Davis, PC, our legal team will work with you to obtain the necessary financial documents and information to analyze and evaluate your legal position and expected outcome and will draft and negotiate a separation agreement that provides structure and security as you move into the next phase of your life, or will work with you to discuss and resolve the provisions of a prenuptial agreement or postnuptial agreement to provide certainty and predictability during an intact marriage.