In North Carolina, there are three types of contracts between spouses in which spouses may settle certain rights and obligations arising from their marriage (equitable distribution and/or spousal support): 1. Premarital Agreements (Prenuptial Agreements or Pre-Nups); 2. Postnuptial Agreements; and 3. Separation Agreements (Separation and Property Settlement Agreements).
Many North Carolinians are familiar with pre-nups and separation agreements. Fewer are familiar with postnuptial agreements. A pre-nup is a contract entered into by couple in anticipation of marriage (and becomes effective upon marriage); a postnuptial agreement is an agreement entered into during marriage; and a separation agreement is an agreement made between spouses who have or who plan to immediately separate (live separate and apart with the intent of ending the marital relationship).
I would guess most attorneys draft many separation agreements, fewer prenups and very, very few postnuptial agreements – that is certainly the case in our practice. Recent changes to N.C. Gen. Stat. §§ 52-10 and 50-16.6(b) may cause an increase in the number of postnuptial agreements North Carolina divorce and family law attorneys draft. These changes also change the effect of reconciliation has on separation agreements containing waivers of alimony.
All three marital contracts have allowed and continue to allow spouses (or spouses-to-be) to settle property rights and obligations which would or have arisen as a result of their marriage. Until recently, however, the law has been clear that spousal support (post-separation support and/or alimony) may only be waived in a premarital agreement (pre-nup) or separation agreement. Attempts to waive spousal support during the marriage in a postnuptial agreement were void against public policy. Additionally, while waivers of alimony in separation agreements have been valid in North Carolina, those waivers were rendered invalid if the couple reconciled.
Recent changes to N.C. Gen. Stat. §§ 52-10 and 50-16.6(b) appear to make it possible to for spouses to waive (or otherwise agree on the terms of) spousal support without the kind of separation required for a valid separation agreement (i.e., living separate and apart with the intent to end the marital relationship). This may allow spouses to negotiate and settle their equitable distribution and alimony claims in a contract even though they intend to work on their marital relationship (i.e., do not have the intent to end their marital relationship). For those spouses who have executed a separation agreement in which they have waived alimony, those waivers remain effective despite future reconciliation – meaning that if the reconciled spouses subsequently separate (separate again), their waiver of alimony from the previous separation remains valid.
This result is due to the addition of the following language to N.C.G.S. § 52-10: “A provision waiving, releasing, or establishing rights and obligations to post separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation …” This change in the law makes it easier to waive alimony in a postnuptial agreement and removes a barrier to reconciliation for couples who have a separation agreement dealing with spousal support and are concerned about the affect reconciliation would have on their agreement.
If you are considering marriage and want to protect your assets or are separated or contemplating separation, it is advisable that you meet with a family law attorney to discuss your rights and obligations and how the laws of North Carolina might affect you.