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Marriage & Love. Family Affairs >> Love and Marriage with Prenuptial Agreement >> Fair prenupts

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Discussion: Fair prenupts-
#224, posted 7 Mar 2022 11:44 pm303 words
Mia143 (Offline)

Joined 7 Mar 2022 11:24 pm

3 posts

I have been reading up on pre-nupts and was wondering about the increase in financial assets such as pensions and 401K accounts held by one spouse. From what I have read, it is possible that a court could rule that the assets gained from the time of the marriage to the time of divorce are considered marital property. The assets financial period prior to a marriage are considered as individual property. Am I to take this to mean that my pension and 401k are protected up to the marriage and without a pre-nupt, subject to division of property upon disolution of the marriage at a 50% rate? If I did not want the state to divide my hard-earned pension and 401k, would a pre-nupt totally protect these assets? My state is NC.

In addition, I own a home prior to the marriage and invested a substantial down payment on the home. The home will stay listed in just my name after the marriage and I will not allow any joint equity loans on the property. Would a pre-nupt protect my investment in this property if I were to sell the property after the marriage and re-invest my equity in a new home under joint ownership? For example, if I were to make a profit of $25,000 on my individually owned home and use that entire amount as a down payment on another home in both our names, do I lose my investment on the property (or did I just gift it to the marriage) even if I have a pre-nupt protecting the home only I owned at the start of the marriage? Is this something that I can include in a pre-nupt? I could see the difference of any equity after the original $25,000 as being jointly split as marital property perhaps.



#225, posted 9 Mar 2022 5:37 pm, in reply to #224439 words
Customer Support (Offline)

Joined 26 Jan 2022 1:01 pm

144 posts

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Dear Mia,

Please be advised that Legal Helpmate is not a law firm and we strongly encourage you to seek the advice of an attorney before you enter into an agreement.

Under NC Statutes, § 50 -20,
"Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses' Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. This presumption may be rebutted by the greater weight of the evidence.
"Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.”

Generally speaking, you may put in your premarital agreement any subject, provided this matter does not violate public policy.
For example, the parties may agree that all proceeds from the property purchased from separate bank accounts must be divided according to each party’s share; or, all proceeds from the property purchased from a joint banking account during the marriage shall be classified as marital property and divided equally upon divorce or shall pass to one spouse upon the other spouse’s death.

If you own a real estate before the marriage, you and your future spouse can enter into a premarital agreement providing that any increase in the value of such property, happened during your marriage, will remain separate property and will not be subject to equitable distribution.

Best regards,

Customer Support


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