Postnuptial agreements are not just legal formalities. For married couples in Asheville, a well-drafted postnup can protect property, provide clarity about spousal support, secure inherited assets, and eliminate guesswork in case of divorce or death. But like any legal contract, a postnup is only as effective as the care and clarity used in its creation.
When done right, a postnup reduces conflict, aligns with the couple’s estate plan, and offers security for both spouses. When done poorly, it creates more legal problems than it solves—and in some cases, gets thrown out in court entirely.
If you’re considering a postnup, understanding what not to do is just as important as knowing what to include. This article outlines the top mistakes to avoid when drafting an Asheville postnup and explains how working with an experienced Asheville prenup lawyer ensures your agreement is legally sound and fully enforceable.
Mistake #1: Skipping Full Financial Disclosure
One of the most common—and most damaging—mistakes is failing to exchange complete and accurate financial information. North Carolina courts require full and fair disclosure from both spouses before a postnup is signed.
This includes:
- Bank account balances
- Investment holdings
- Real estate ownership
- Debts and liabilities
- Retirement accounts
- Business interests
Without full disclosure, the agreement is vulnerable. If one spouse later learns about an undisclosed asset or liability, they can challenge the agreement on grounds of fraud, duress, or lack of informed consent.
An experienced Asheville prenup lawyer will require both parties to attach detailed financial statements and sign off on their accuracy. This not only protects both spouses, but also strengthens the postnup in court.
Mistake #2: Using Vague or General Language
Phrases like “each party keeps what they brought into the marriage” or “we agree to split everything fairly” are a recipe for confusion—and litigation. Your postnup should include detailed, specific terms that leave no room for interpretation.
Each asset or category of property should be:
- Identified clearly (with account numbers or addresses)
- Classified as separate or marital
- Assigned to one party or allocated by percentage
- Supported by clear definitions of what “separate” and “marital” mean in your specific agreement
An Asheville prenup lawyer avoids vague terminology and ensures each term has a clear legal meaning under North Carolina law.
Mistake #3: Trying to Waive Child Support or Custody Rights
North Carolina does not permit postnups to predetermine custody or child support. These matters are reserved for the courts, which are required to rule based on the child’s best interests—not parental agreements.
If your postnup attempts to:
- Waive child support
- Predetermine legal or physical custody
- Assign parenting time
- Penalize one parent for misconduct with respect to the child
…those provisions will likely be deemed unenforceable.
You can, however, use the postnup to:
- Express shared parenting goals
- Allocate private school or extracurricular expenses
- Define roles in estate planning related to children
An Asheville prenup lawyer helps you include family-focused clauses that support—not override—court authority.
Mistake #4: Drafting Without Legal Counsel
Some spouses try to draft their own postnup using templates or language copied from the internet. This might save money upfront, but it often leads to serious legal flaws that render the agreement unenforceable.
Problems with DIY postnups often include:
- Unclear asset classification
- Missing disclosure exhibits
- Inconsistent terms
- Failure to follow North Carolina law
- Language that’s unenforceable or contrary to public policy
North Carolina courts are more likely to enforce a postnup when both spouses had independent legal counsel. If only one spouse has a lawyer—or neither does—the agreement is vulnerable to challenge.
An Asheville prenup lawyer ensures the drafting, negotiation, and execution process meets all legal standards.
Mistake #5: Signing Under Duress or Time Pressure
Postnups must be entered into voluntarily. If one spouse pressures the other to sign—or if there’s evidence of manipulation or coercion—the agreement may be invalidated.
Common red flags include:
- “Sign this or I’m leaving.”
- Presenting the agreement during a time of emotional crisis
- Giving the other spouse limited time to review the document
- Pressuring a spouse to sign without legal advice
Voluntariness is not just about physical force—it’s about fairness. An Asheville prenup lawyer helps document the negotiation process and ensures both parties sign free of undue influence.
Mistake #6: Ignoring Changes in Law or Circumstances
Postnups should not be static. A postnup that was fair and clear in 2016 may not be valid today if:
- The couple’s finances have changed significantly
- One spouse has stopped working
- New property or debt has been acquired
- The family has moved to a different state
- The law has changed
You may need to update the agreement to reflect your current life and legal framework.
An Asheville prenup lawyer can review your existing postnup and recommend whether it should be amended, reaffirmed, or replaced.
Mistake #7: Using the Agreement as Punishment
A postnup should create clarity and protection—not serve as revenge for past misconduct.
Some spouses try to include punitive clauses such as:
- “If you ever cheat again, you get nothing.”
- “If we divorce, you waive everything because you lied to me.”
- “You owe me half your salary if you move out.”
These clauses may be struck down as contrary to public policy or unconscionable. Courts favor agreements that balance each party’s rights and reflect informed, mutual decision-making—not coercion or retribution.
An Asheville prenup lawyer can incorporate accountability terms that support reconciliation while maintaining fairness.
Mistake #8: Overreaching on Waivers
Postnups often include waivers of rights—such as spousal support, elective share, or interest in certain property. But overreaching can invalidate the entire agreement.
Examples of problematic waivers:
- A spouse waives all support despite having no income or savings
- A spouse waives interest in property without understanding its value
- A spouse gives up inheritance rights without coordination with estate planning
An Asheville prenup lawyer reviews proposed waivers for legal adequacy, fairness, and long-term impact.
Mistake #9: Forgetting to Coordinate With Estate Plans
Your postnup should work in harmony with your estate plan. If your agreement waives inheritance rights, you need to update:
- Wills and trusts
- Beneficiary designations
- Life insurance policies
- Deeds and titles
If your estate plan leaves assets to your spouse but your postnup waives those rights—or vice versa—this creates ambiguity and potential litigation.
An Asheville prenup lawyer helps coordinate your postnup with your larger estate and financial planning goals.
Mistake #10: Omitting Modification or Sunset Clauses
Your life may change in ways that neither spouse can anticipate. A good postnup includes terms that allow flexibility and future review.
Clauses to consider:
- Amendment procedures
- Review triggers (e.g., after 10 years, after childbirth, after a career change)
- Sunset clause that terminates the agreement after a certain number of years or conditions
An Asheville prenup lawyer helps you include built-in ways to revisit and revise the agreement without starting over.
Mistake #11: Failing to Address Business Ownership
If either spouse owns a business—or plans to—your postnup should:
- Define ownership as separate or marital
- Determine how business appreciation is treated
- Address spousal involvement in the company
- Limit claims to income or equity in divorce
Without this clarity, the business may become subject to division during separation.
An Asheville prenup lawyer ensures that postnups include coordinated language that protects business continuity and ownership integrity.
Mistake #12: Relying on Intent Instead of Clarity
Many couples assume their verbal agreements, intentions, or unwritten understandings will govern what happens in divorce. They won’t.
Your postnup must:
- Be in writing
- Include all material terms
- Avoid vague language like “we’ll figure it out later”
- Be signed and notarized
An Asheville prenup lawyer ensures your agreement says exactly what you intend—with no room for conflicting interpretation.
Frequently Asked Questions
Is a postnup enforceable in North Carolina?
Yes. A properly drafted postnup is enforceable if it’s in writing, signed voluntarily, based on full disclosure, and not unconscionable.
Can a postnup protect assets acquired after marriage?
Yes. A postnup can classify assets as separate or marital, regardless of when they were acquired.
Can we include an infidelity clause in our postnup?
Possibly. North Carolina courts may enforce infidelity clauses if they’re fair and not punitive, but they must be carefully drafted.
Do both spouses need lawyers to sign a postnup?
Not legally required, but highly recommended. Independent counsel increases the likelihood of enforcement.
Can we waive spousal support in a postnup?
Yes, but the waiver must be voluntary, informed, and fair. A waiver may be struck if it leaves one spouse destitute.
How do we update a postnup if circumstances change?
You can amend the agreement with a written and signed modification, or revoke and replace it entirely.
What happens if we move out of North Carolina?
You should have your postnup reviewed by a lawyer in your new state. Some states apply different standards to enforcement.
Is a postnup better than a prenup?
They serve different purposes. A prenup is signed before marriage, while a postnup is signed after. Both are enforceable in North Carolina.
What if we already have a prenup?
A postnup can supplement, modify, or replace a prenup. You’ll want to ensure consistency between the two documents.
Will the court enforce a one-sided postnup?
Maybe. Courts look at fairness at the time of enforcement. Extremely one-sided agreements may be struck down as unconscionable.
The McKinney Law Group: Strategic Postnup Planning for Asheville Marriages That Evolve
From financial windfalls to shifting career roles, life can change fast. We help Asheville clients adjust with postnups that protect personal interests while honoring the marriage.
Call 828-929-0642 or email [email protected] for a private consultation.