How Does the Divorce Process Differ When a Prenup Is in Place?

If you have a prenuptial agreement, you might think that the divorce process will be a breeze if the marriage does not work out. After all, you already signed an agreement about the terms of a divorce, so you doubt that you will even have to go through the courts. Unfortunately, that is not what happens when you get a divorce, with or without a prenuptial agreement.

You will still have to go through some of the same steps that everyone must go through during any divorce, but there are some differences when you have a prenup. You will want to have experienced North Carolina Divorce Attorneys safe-guarding your rights in this situation.

First Things First

The prenuptial agreement will not be relevant in the divorce unless the judge determines the document to be enforceable. When a divorce involving a prenup gets filed, the prenup gets submitted to the judge. The judge has to evaluate whether they will follow the terms set forth in the prenup or declare the document unenforceable.

Either party could challenge the prenup and ask the judge to set the agreement aside. If the judge agrees with the challenger and declares the prenup unenforceable, the judge will distribute the property using a different approach rather than following the property distribution terms of the prenuptial agreement. Alternatively, the judge could choose to enforce certain provisions of the agreement and not others depending on how your prenup was drafted. These options are too wide-ranging and have too many outcomes for one to leave them to chance, always seek the advice of an experienced attorney. 

Grounds to Challenge a Prenuptial Agreement

Typically, the party who stands to lose the most if the prenuptial agreement gets enforced challenges the prenup. They will receive significantly less under the terms of the prenup than they would under standard property distribution methods in North Carolina. 

Some of the common reasons people try to “bust” a prenup are:

  • The prenup is inherently unfair to one party.
  • Property of the parties was so comingled between separate and marital property that one party believes the prenup should be disregarded altogether.
  • The disadvantaged party was not given an opportunity to have their own lawyer read the document and negotiate fair terms.
  • The wealthy party presented the prenup to the other party soon before the wedding and threatened to call off the marriage if the disadvantaged party did not sign the paper.
  • One or both of the parties did not make full disclosure to the other of the extent of their assets, debts and liabilities, or anticipated windfalls like inheritance.
  • If enforced, the prenup will leave one party destitute and in need of public assistance.

These are but a few examples of grounds for challenging a prenuptial agreement.

What Happens Next

The parties file their respective pleadings to formally allege to the court why they believe the prenup should or should not be enforced and any supporting documentation to that end. From there, a hearing will have to be held where the parties present all this formally to a judge. The judge will examine evidence and likely hold a hearing in which both parties and others testify as to their knowledge of the parties, the prenup, and the parties’ property. If the judge rules in favor of the challenger, the prenup is, in essence, ripped up, and the case proceeds as any other divorce case. 

If the judge denies the challenge, the divorce decree will incorporate the terms of the prenuptial agreement, or any provisions the judge chooses to uphold. In this situation, the parties skip the part of the divorce process in which the judge divides the property and debts into marital and separate assets and liabilities. A prenup, when enforceable, can make the divorce process quicker and easier than a divorce without a prenuptial agreement, particularly if there are no minor children of the marriage, and the parties did not have many assets they acquired together during the marriage.

What a Prenuptial Agreement Can Cover in North Carolina

A prenup cannot cover all the topics that a divorce might encompass. Simply said, prenups in our state can cover the ownership and distribution of property and spousal support or the waiver thereof.

What a Prenuptial Agreement Cannot Cover in North Carolina

A prenuptial agreement cannot cover child support, child custody, or visitation. The divorce court will have to handle those issues.

You will want to talk to an experienced Family Law Attorney if you are considering entering into a prenuptial agreement or have a question about one. Contact our office today for help with your case.