Postnuptial agreements are not as commonly discussed as prenuptial agreements, but they serve an equally important role in protecting married couples’ financial futures. In Asheville, more spouses are turning to postnups as a tool to create certainty, restore trust, or redefine the financial terms of their relationship after the wedding day. But just like prenups, not all postnups are enforceable.
The enforceability of a postnup depends on more than just signatures. A valid postnup in North Carolina must meet strict legal standards. If a judge finds that those standards were not met, the agreement could be disregarded completely in the event of divorce.
Understanding how to draft an enforceable postnup—and how courts in Asheville interpret them—is critical for anyone considering this type of contract. An experienced Asheville prenup lawyer plays a central role in ensuring the agreement is both strategic and enforceable.
This article explores the legal framework governing postnuptial agreements in North Carolina, common pitfalls that render them unenforceable, and practical steps couples can take to ensure their postnup is legally sound and respected in court.
What Is a Postnuptial Agreement?
A postnuptial agreement is a written contract between two spouses that is executed after marriage. It outlines how assets, debts, income, and support will be handled in the event of divorce, separation, or death. Postnups may also address business interests, retirement accounts, real estate, and waivers of spousal rights in estates.
Unlike prenuptial agreements, which must be signed before marriage, postnups are created after the marital relationship has already begun. This distinction matters. North Carolina law imposes a higher burden when evaluating whether a postnup was entered into voluntarily, fairly, and with full awareness of the legal consequences.
An Asheville prenup lawyer understands that postnups require a careful blend of strategy, timing, and process to withstand legal challenges.
North Carolina’s Legal Requirements for Postnuptial Agreements
Postnups in North Carolina are governed by general contract law, not a specific statute. That means the agreement must satisfy the same requirements that apply to enforceable contracts:
- It must be in writing
- It must be signed by both spouses
- It must be based on full and fair financial disclosure
- It must be entered into voluntarily
- There must be consideration
- It must not violate public policy
- It must be fair and not unconscionable
If any of these elements is missing, the court may invalidate all or part of the agreement.
An Asheville prenup lawyer ensures that each requirement is addressed explicitly and backed by proper documentation.
Full and Fair Financial Disclosure
Before signing a postnup, both parties must exchange detailed information about their financial circumstances. This includes:
- Income
- Assets
- Debts
- Real estate holdings
- Business interests
- Retirement accounts
- Expected inheritances
This disclosure should be in writing and attached to the agreement. A party who signs a postnup without full financial knowledge may later challenge it as unenforceable.
An Asheville prenup lawyer prepares formal financial disclosures and requires both spouses to acknowledge receipt and understanding.
Voluntary Execution
A postnup must be signed freely and voluntarily. North Carolina courts will not enforce an agreement if one spouse was pressured, threatened, or misled.
Factors that may indicate coercion include:
- Presenting the agreement as a surprise
- Threatening separation or divorce unless it’s signed
- Rushing the process or limiting time for review
- Refusing to allow independent legal counsel
Because postnups are signed during the marriage, courts are particularly sensitive to power imbalances. If one spouse dominates the financial relationship, the court may assume the agreement was not entered into freely.
An Asheville prenup lawyer uses a deliberate, documented process to ensure that both parties have time, space, and legal support before signing.
Consideration in Postnups
A contract is not valid without consideration. In the context of postnups, this means each party must give up something or provide something of value in exchange for the agreement.
Valid forms of consideration might include:
- A promise to stay in the marriage
- A waiver of rights to certain property
- Financial support obligations
- Mutual concessions on asset division
The idea is that the agreement must reflect a mutual exchange—not a one-sided list of demands.
An Asheville prenup lawyer ensures the agreement includes valid and identifiable consideration to support enforcement.
Fairness and Unconscionability
Courts in Asheville are not looking to rewrite agreements. But they will refuse to enforce a postnup that is unconscionable.
Unconscionability occurs when:
- The agreement is shockingly one-sided
- One spouse is left with nothing
- A spouse waived important rights without understanding
- Circumstances changed dramatically, making the agreement unfair
For example, a postnup that leaves one spouse with no assets, no support, and no access to the marital home after decades of marriage may be deemed unenforceable.
An Asheville prenup lawyer includes fallback clauses and ensures that the agreement balances the interests of both spouses.
Waiver of Spousal Rights
Postnups often include waivers of rights that would otherwise be guaranteed under North Carolina law. These may include:
- Waiver of alimony
- Waiver of elective share in the estate
- Waiver of rights to marital property
These waivers must be clear, specific, and voluntary. Courts may scrutinize them closely, especially if they result in substantial deprivation.
An Asheville prenup lawyer drafts waiver clauses that are narrow, intentional, and supported by disclosure and counsel.
Limitations on What a Postnup Can Do
There are several legal limits on what a postnup can include in North Carolina:
- A postnup cannot determine child custody
- A postnup cannot waive child support
- A postnup cannot violate public policy
- A postnup cannot interfere with the court’s jurisdiction
- A postnup cannot require illegal acts or conditions
Courts have the final say over custody and support, regardless of what the parties agreed to privately.
An Asheville prenup lawyer keeps the agreement within enforceable boundaries while still achieving the parties’ goals.
Independent Legal Counsel
While not technically required, having separate lawyers for each spouse significantly increases the chance that the postnup will be enforced.
When both parties have legal representation:
- They better understand their rights and risks
- The agreement is more likely to reflect informed decisions
- The court is less likely to find unfairness or coercion
If only one spouse has a lawyer—or neither does—the agreement is more vulnerable to future challenges.
An Asheville prenup lawyer provides independent advice and recommends co-counsel for the other party when appropriate.
The Role of Timing
Postnups should never be rushed. While not governed by a pre-marriage deadline like prenups, postnups still benefit from deliberate timing.
Couples should avoid signing immediately after a major conflict or under duress. Instead, the agreement should follow:
- Calm, open discussion
- Full financial disclosure
- Independent review by attorneys
- Time to reflect and revise
A rushed or emotional postnup is less likely to be enforced.
An Asheville prenup lawyer guides clients through a clear and deliberate timeline to protect the process.
When Are Postnups Commonly Used?
Postnups are especially useful in the following situations:
1. One Spouse Receives a Financial Windfall
A spouse who inherits wealth or receives a settlement may want to keep it separate.
2. Business Ownership Needs Clarification
Entrepreneurs often use postnups to protect their business from marital claims.
3. There Are Children from a Prior Marriage
Postnups can preserve inheritance rights for children and prevent spousal claims on certain property.
4. Marital Conflict or Separation Is Being Reconsidered
Couples on the brink of divorce may use a postnup as part of a reconciliation effort.
5. Estate Planning Is Being Updated
Spouses may waive elective share rights or clarify asset distribution after death.
An Asheville prenup lawyer customizes each agreement to reflect the unique goals and risks of the marriage.
What Happens If a Postnup Is Challenged?
If one spouse challenges the agreement in court, the judge will consider:
- Was the agreement signed voluntarily?
- Was there full financial disclosure?
- Was the agreement fair when signed?
- Have circumstances changed drastically since signing?
- Did both parties have access to legal advice?
If the answer to any of these questions raises concern, the court may:
- Enforce the agreement in full
- Enforce only parts of it
- Set aside the entire agreement
An Asheville prenup lawyer drafts agreements with an eye toward future litigation, using language and process designed to support enforcement.
What Does an Enforceable Postnup Look Like?
An enforceable postnup includes:
- A written agreement, signed by both spouses
- Full schedules of financial disclosure
- Clear, specific terms for property and support
- A recitation of consideration (what each spouse is giving)
- Waivers of rights, if applicable, written clearly and knowingly
- A clause acknowledging legal advice or opportunity for counsel
- A timeline that reflects calm, thoughtful execution
An Asheville prenup lawyer ensures every one of these elements is addressed with professionalism and foresight.
Frequently Asked Questions
Are postnups enforceable in North Carolina?
Yes. Postnups are valid and enforceable in North Carolina if they meet contract law standards: writing, voluntary execution, full disclosure, consideration, and fairness.
What makes a postnup invalid?
A postnup can be invalidated if it was signed under duress, lacks financial disclosure, is unconscionable, contains illegal provisions, or lacks consideration.
Can we include spousal support terms in a postnup?
Yes. You can waive or define spousal support in a postnup, but the waiver must be fair, voluntary, and based on full financial understanding.
Do we both need lawyers to make the postnup enforceable?
It’s not legally required, but it’s strongly recommended. Courts look more favorably on agreements where both parties had legal representation.
Can a postnup waive inheritance rights?
Yes. A postnup can include a waiver of elective share and other estate rights, but only if signed voluntarily and with full disclosure.
Can we decide child custody in a postnup?
No. Courts retain control over child custody and support decisions, and these issues cannot be predetermined in a postnup.
What if we want to change the postnup later?
You can amend or revoke a postnup at any time if both parties agree and follow the same legal formalities as the original agreement.
Can a postnup save a troubled marriage?
In some cases, yes. A postnup can provide structure, reduce fear, and create new commitments that support reconciliation.
Can a postnup protect my business?
Yes. A postnup can classify a business as separate property, exclude appreciation, and prevent future marital claims.
How long does it take to create a postnup?
It depends on complexity. Most postnups take several weeks, especially if both parties are working with attorneys and financial disclosures are required.
The McKinney Law Group: Clear Legal Protection Before You Say “I Do” in Asheville
A prenuptial agreement provides structure, clarity, and peace of mind. Whether you’re protecting premarital property or managing future expectations, we’ll guide you every step of the way.
Call 828-929-0642 or email [email protected] to learn more.