Postnuptial Agreements in North Carolina
Already married? You can still put it in writing.
A postnuptial agreement lets spouses decide how property, debt and inheritances will be treated if the marriage ends by divorce or death. It is signed after the wedding, by couples who intend to stay married.
A postnup is not a separation agreement
A postnuptial agreement is for spouses who are staying together. If you are separating, or about to, a separation agreement is the right document, and it can settle things a postnup cannot, including alimony.
What a North Carolina postnup can address
North Carolina lets spouses agree in writing, before, during or after marriage, on how their marital property will be divided. A properly signed agreement is binding. A postnup commonly covers:
- What is separate and what is marital. A business, a professional practice, a home one spouse owned before the wedding, or an inheritance can be classified in advance.
- Debt. Who is responsible for student loans, business debt or debt one spouse brought into the marriage.
- What happens at death. Spouses can waive or limit rights in each other’s estates, which is often done alongside an estate plan, especially in a second marriage.
- An existing prenup. A postnup can amend or replace a prenuptial agreement that no longer fits.
What a postnup cannot reliably do
Waive alimony while you are living together. This is the biggest difference between a postnup and a prenup. North Carolina allows spouses to waive or set alimony and post-separation support by contract when the contract is made during a period of separation. A support waiver signed in the middle of an intact marriage is at real risk of not being enforced.
Decide custody or child support. A court decides those based on the child’s best interests and the child support guidelines at the time, whatever the parents signed earlier.
Reward or encourage divorce. Contracts between spouses are valid only if they are not against public policy. Terms that give one spouse an incentive to end the marriage invite a challenge.
What makes a postnup hold up
Spouses owe each other a duty of good faith that engaged couples do not, so courts look at how a postnup was made as closely as at what it says.
Signed and acknowledged
The agreement should be in writing, signed by both spouses and acknowledged before a notary or other certifying officer who is not a party to it.
Full financial disclosure
Each spouse should see the other’s income, assets and debts before signing. Hidden or understated assets are the most common ground for setting an agreement aside.
Voluntary, with time to think
An agreement signed under an ultimatum, or the night before a deadline, is vulnerable. Each spouse needs time to read it and ask questions.
Independent lawyers
One lawyer cannot represent both of you. Each spouse having separate counsel is the strongest answer to a later claim of unfairness.
When a postnup makes sense
- A business. One spouse starts, buys into or inherits a business and wants it, or its growth, kept out of equitable distribution.
- An inheritance or large gift. Family money is about to arrive and the family wants it to stay separate.
- A career change. One spouse leaves work to raise children or support the other’s career and wants that recognized in how property would be divided.
- A second marriage. Spouses with children from earlier relationships want to be sure of what passes to those children.
- Rebuilding after a breach of trust. After an affair or a financial betrayal, some couples reconcile on written terms.
- A prenup that was rushed. An agreement signed days before the wedding can be replaced with one signed properly.
Postnup, prenup or separation agreement?
| Prenuptial agreement | Postnuptial agreement | Separation agreement | |
|---|---|---|---|
| When it is signed | Before the wedding | During the marriage, while living together | At or after separation |
| Governing law | Uniform Premarital Agreement Act | G.S. 52-10, contracts between spouses | G.S. 52-10 and 52-10.1 |
| Property and debt | Yes | Yes | Yes |
| Alimony waiver | Yes | At risk unless you are separated | Yes |
| Custody and child support | No | No | Yes, subject to the court’s authority |
Our process
- Consultation. You meet with an attorney about what you want the agreement to accomplish and whether a postnup is the right tool.
- Disclosure. Both spouses exchange financial information: income, assets, debts and business interests.
- Drafting. We draft the agreement around your goals and North Carolina’s requirements.
- Independent review. Your spouse takes the draft to a separate attorney, and terms are negotiated if needed.
- Signing. Both spouses sign before a notary, with time to spare and no outside deadline pressing.
North Carolina postnuptial agreement FAQ
Are postnuptial agreements enforceable in North Carolina?
Yes. North Carolina law allows married couples to make contracts with each other as long as the contract is not against public policy. To hold up, a postnuptial agreement should be in writing, signed by both spouses and acknowledged before a notary or other certifying officer, and it should be signed voluntarily after each spouse has had a fair picture of the other’s finances.
Can a postnuptial agreement waive alimony?
Usually not while you are living together. North Carolina allows spouses to waive or set alimony and post-separation support by contract when the contract is made during a period of separation, or in a premarital agreement or separation agreement. A support waiver signed in the middle of an intact marriage is at real risk of not being enforced. Property terms are different and can be agreed at any time.
Do we each need our own lawyer?
One lawyer cannot represent both spouses, because your interests in the agreement are not the same. Each spouse having an independent attorney is one of the strongest protections against a later claim that the agreement was unfair or signed under pressure.
Can a postnup change or cancel our prenup?
Yes. After marriage, a premarital agreement can be amended or revoked by a written agreement signed by both spouses. A postnuptial agreement is the usual way to do that, and it should say clearly which terms of the earlier agreement it replaces.
Does signing a postnup mean we are headed for divorce?
No. Most couples who sign one intend to stay married. A postnup is financial planning, often prompted by a new business, an inheritance, a career change or an updated estate plan.
What happens to our postnup if we separate later?
The property terms apply as written. Support, custody and anything the postnup did not cover are then handled in a separation agreement or by the court. Custody and child support can never be fixed in advance by a postnup.
Meet with a team near you
Put your agreement in writing
We draft and review postnuptial agreements for married couples across North Carolina.
For general information only; not legal advice. Sources: G.S. 52-10, G.S. 50-20(d), G.S. 50-16.6, G.S. 30-3.6.
Managing Partner and Co-Founder, McIlveen Family Law Firm. Angela is a Board Certified Specialist in Family Law, certified by the North Carolina State Bar Board of Legal Specialization, and an experienced family law trial attorney who represents clients across North Carolina. She personally reviewed this page for legal accuracy.
