Prenuptial Agreements in North Carolina – Can I get out of mine?

Prenuptial agreements in North Carolina are governed by Chapter 52B of the General Statutes, entitled the “Uniform Premarital Agreement Act”. There are two specific methods used to attack these agreements, which are outlined in § 52B-7 entitled “enforcement” and the applicable case law.

The first method to invalidate a prenuptial agreement in North Carolina is if you did not execute the agreement voluntarily, and the second method is if the agreement was unconscionable when it was executed because your spouse:

1. Did not give you adequate disclosure regarding his/her property and assets;
2. You did not waive such disclosure; and,
3. There was no way that you could have possibly known the nature of your spouses property and assets when you signed the agreement.

There is also a third method to invalidate the prenuptial agreement, but it is much more difficult to prove.  This is if the agreement was “unconscionable”.  In other words, the agreement was so unfair that there is no way that the court could enforce it.

The Prenuptial Agreement was not executed voluntarily

In order to determine whether a prenuptial agreement is executed voluntarily, you must look to some other factors, including:

• Whether or not you had consulted independent counsel before you signed the agreement;
• The overall fairness of the terms of the agreement;
• Was there any misrepresentation or deceit by your spouse prior to you signing the agreement;
• Your age, physical, and mental condition when you signed;
• Whether or not you were pressured by your spouse to sign the agreement;
• How much time passed between when you were presented with the agreement and your wedding; and,
• Whether or not you closely read the agreement before you signed it.

In one of the main cases on these issues, Tiryakian v. Tiryakian, the North Carolina Court of Appeals upheld a trial courts decision to void a prenuptial agreement because the Husband had failed to make a full disclosure of his assets and had his attorney draft a prenuptial agreement that the wife signed without full knowledge of its contents, and without seeking independent counsel. In addition, in this situation, the Husband had presented the agreement to the Wife on the day before the wedding.

There was no financial disclosure

Note that under the North Carolina Statutes, you must prove three separate things to invalidate a prenuptial agreement on lack of disclosure alone. You must show that there was no disclosure, that you did not waive such disclosure, and that you would have had no way of knowing what property or assets your soon-to-be spouse had.

The reason this is infrequently the sole ground to invalidate the agreement is that if you were voluntarily execute the agreement, you would have had plenty of time to review it, consult with your own lawyer about the agreement and ask lots of questions of your spouse. At that point, if your spouse was still hiding assets, then you would probably either know about it, or your spouse has done a good job of lying to you about what they have. And if that were the case, then you would seek to invalidate the agreement under the first category in that you did not sign the agreement voluntarily.

So what’s the bottom line – Can I attack my prenuptial agreement in North Carolina?

As with all legal issues, you are going to need to look carefully at the facts of your particular situation. If your spouse presented you with an agreement on the day before your wedding, you didn’t read it, you didn’t consult counsel, and the agreement is completely unfair to you – then you probably have a good shot to undo the agreement.

But these cases can get complicated and there is no sure thing. The best thing you can do is contact a lawyer who can walk you through these issues and help you do everything you can to make sure you have covered all your legal bases.