Family Law

Do I need a Pre-Nup?

That is a question many people ask themselves, particularly when facing a second marriage. If you suffered a messy divorce and felt like you lost too much as a result, you will be keen to shield yourself the second time around. It makes sense to get the protection now that you wish you had then.

But a second marriage is not the only reason someone might need a pre-marital agreement. Pre-marital agreements largely determine property rights and support entitlement. You may have children from a prior relationship and are concerned about protecting assets you ultimately hope to pass on to them. You may be an owner or a partner in a business interest that you need to protect. You may be moving to a new location or giving up your career to enter the marriage and would like to have some protection if you suddenly find yourself separated and unable to provide for yourself. You are concerned about the debts of the other party and would like to insulate yourself from those issues. For many people, the practical answer to the question is a resounding YES; you do need a pre-nup.

Pre-marital agreements are contracts between future spouses that establish rights both 1) upon the separation of the couple or 2) during the marriage itself. Yes, you read that correctly. Pre-marital agreements are not just for the purposes of separation. Financial responsibilities and obligations during the marriage can be addressed within your agreement. For instance, you can establish who will be responsible for paying recurring monthly expenses, how bank accounts will be titled and funded, obligations to provide for health coverage, gifts between spouses, and more.

In the event of a separation, when a dispute arises without a pre-marital agreement in place, the courts of the State of North Carolina will determine all property rights and support issues for a separating couple. This can be an arduous and lengthy process, not to mention expensive. You may be forced to sell your business interest(s) or your house to resolve the dispute. You will likely feel as though you lost everything, or at least a lot of control over your personal property.

With a pre-marital agreement, you can have confidence moving forward that no matter what the life hurdle you and your future spouse face, your interests will be well protected. It can take the gamesmanship out of a relationship. You are not leaving or staying in a marriage out of fear. You are able to focus purely on the health of your marriage relationship without worry about your kids or your business.

Our firm can assist you in drafting a pre-marital agreement that is specific to your needs and guide you in making the appropriate arrangements to protect your interests.

A Bright Side For Divorcing Triangle Couples: Selling Your House On The Current Market

house-for-sale Divorce is undoubtedly tough, but occasionally there is a bit of a silver lining. A two-fold increase – pace of sales and prices – has been seen in the Raleigh-Durham housing market thus far in 2014. A recent report by the Triangle Multiple Listing Service states that sales of homes have increased by 3.4% and prices have increased 4.5% year to date. That’s a welcomed positive note for divorcees in the Triangle. They can expect to sell their home quicker and for a higher price than they would have been able to in the past. It’s one less thing for them to worry about.

NC Man Cannot Use Voidable Marriage As A Defense To Alimony

In Duncan v. Duncan, the North Carolina Court of Appeals addressed the issue of a voidable marriage. The Duncans exchanged vows in two separate marriage ceremonies. The first occurred in 1989 and was presided over by a man who held himself out as a Cherokee medicine man and who was ordained as a minister by the Universal Life Church. In 2001, the couples participated in a second ceremony at a Presbyterian church.

Alimony awards are based, in part, on the length of the marriage. Apparently, Mr. Duncan was attempting to limit his potential alimony exposure by arguing that the marriage did not begin until 2001. The pleadings indicate that the couple separated in 2005, so the issue was whether the couple was married for approximately 4 years or 16.

The Court noted that common law marriages are not recognized in North Carolina:

Our Supreme Court has held that “[a] common law marriage or marriage by consent is not recognized by this State.” State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980). Rather, “[t]o constitute a valid marriage in this State, the requirements of G.S. 51-1 must be met.” Id. at 486, 272 S.E.2d at 353.

N.C. Gen. Stat. § 51-1, as it read in 1989, required that the parties “‘express their solemn intent to marry in the presence of (1) an ordained minister of any religious denomination; or (2) a minister authorized by his church; or (3) a magistrate.’” Pickard v. Pickard, 176 N.C. App. 193, 196, 625 S.E.2d 869, 872 (2006) (quoting State v. Lynch, 301 N.C. 479, 487, 272 S.E.2d 349, 354 (1980)).

Whether the 1989 marriage ceremony met these requirements is a bit of an open question. The majority opinion concluded that Mr. Duncan met his burden of showing that the 1989 marriage ceremony did not meet the requirements of G.S. § 51-1. The minority opinion concluded differently.

Ultimately, however, the case turned on the issue of whether Mr. Duncan would be permitted to claim that the marriage was invalid after he had participated in the 1989 ceremony, which he knew, or should have known, may not have complied with North Carolina law. The Court of Appeals concluded that the Duncans were equally negligent in relying on the supposed Cherokee medicine man’s credentials to conduct their wedding.

The Court then applied the doctrine of equitable estoppel. Under this doctrine, a party who is silent about or conceals important facts from the other party, may not later take advantage of that deception. The Court would not allow Mr. Duncan to participate in the 1989 wedding ceremony, go about his life for 12 more years as if he were married and then attempt to argue that the 1989 ceremony was bogus.

This case is unusual in that the Duncans may have had what was essentially a common law marriage. However, the Court of Appeals would not allow Mr. Duncan to use that fact to limit his alimony exposure because of his somewhat disingenuous legal position.