Prenuptial Agreements in North Dakota

An overview of prenuptial agreements in North Dakota.

By , Attorney

Prenuptial agreements aren't limited to those with lifestyles of the rich and famous. Rather, premarital agreements come in all shapes and sizes. What these agreements do have in common is that they tend to lead to increased financial security during marriage and in the event of divorce.

The rules governing prenuptial agreements are different in each state. If you are considering a prenuptial agreement, it's important to understand the requirements in North Dakota. If after reading this article you have questions, please contact a local family law attorney for advice.

What Is a Prenuptial Agreement?

A "prenuptial agreement" or "premarital agreement" is an agreement between two people who plan to marry. Generally, prenups address marital rights and obligations, including spending during marriage and the division of assets and debts upon death or divorce. In North Dakota, the agreement must be in writing and signed by both spouses before marriage in order to be binding. A prenuptial agreement goes into effect only when the couple marries. If a couple doesn't marry, the agreement is unenforceable.

Who Should Get a Prenuptial Agreement?

Prenuptial agreements can be adapted to the specific needs of any couple. A wealthy business owner may want an agreement that protects his or her business assets and provides a tax shelter. On the other hand, a prenup may appeal to a recent divorcee because it simplifies a potential divorce process. Others may use premarital agreements to preserve their children's inheritances or to keep certain property in their families.

The subject of a prenuptial agreement may overshadow a romantic marriage proposal. However, a prenup can actually minimize marital strife and arguments about money by spelling out how funds should be used during marriage and how property will be divided in the event of a divorce. If a couple divorces without a prenuptial contract, their assets and property will be divided according to North Dakota state law. A prenuptial agreement is a good idea for anyone who wants to have a say on how his or her property may be dealt with in the event of a divorce.

What Does a Prenuptial Agreement Cover?

Prenuptial contracts vary as much as the couples that use them. However, most agreements generally resolve one or more of the following issues:

  • each spouse's entitlement to spousal support
  • each spouse's right to separate or marital property, including management of the property during marriage
  • the division of debts and liabilities
  • the division of property and assets upon death or divorce
  • each spouse's entitlement to the other's retirement or pension benefits upon death or divorce
  • the state law governing the agreement
  • the award and allocation of attorney's fees and costs in the event of divorce, and
  • any other issue the couple agrees upon (except for child support and custody).

Spouses can amend their premarital agreement if they change their minds on certain terms. However, any amendments must be in writing and signed by both spouses. In the event a couple marries, but their marriage is later declared void (because they are too closely related or one spouse was married to another individual at the time of the marriage) the terms of a premarital agreement won't be enforced. But, if a court's refusal to enforce the agreement would lead to an unfair result, certain provisions may be enforced, even in the case of a void marriage.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in North Dakota?

Prenuptial agreements cannot attempt to govern child support and child custody issues. Children are entitled to financial support from both parents. Neither parent can contract away a child's right to support through a premarital agreement.

Moreover, parents or prospective parents can't resolve child custody matters in contemplation of their own marriage. A child's best interests are always central to any custody decision, and those interests cannot be assessed until the child's parents separate or begin the divorce process. If parents include child support or custody provisions in a prenup, a judge will ignore those portions of the agreement.

Will a North Dakota Court Enforce My Prenuptial Agreement?

North Dakota is in the majority of states that have adopted the Uniform Prenuptial Agreement Act (UPAA). The UPAA sets forth guidelines for premarital agreements.

The vast majority of prenuptial agreements are upheld. However, if one or more of the following factors exist, an agreement may be struck down:

  • one spouse did not sign the agreement voluntarily
  • the agreement is "unconscionable" or severely unfair because:
    • one spouse failed to fully disclose his or her assets or debts
    • the defrauded spouse did not waive in writing his or her right to access the other spouse's financial information, and
    • the defrauded spouse lacked access to knowledge of the other spouse's financial information.

An agreement may be found unconscionable even if both spouses signed it voluntarily. Whether an agreement yields an extremely unfair result can be evaluated at the time the agreement is signed, when the spouses divorce or separate or when the agreement is enforced. For example, a spouse who becomes dependent on state assistance because he or she was denied alimony under a prenuptial agreement may be entitled to set portions of the agreement aside.

Additionally, even if an agreement was signed voluntarily and yields a fair result, if certain unenforceable terms are contained in an agreement, those terms may be set aside. Terms that are not permitted in prenuptial agreements include:

  • limitations on a child's right to support
  • limitations on a victim's right to seek justice or reparations for domestic violence
  • penalties on either spouse for filing a divorce action, and
  • modifications to a court-ordered separation.

There can be nuances in prenuptial agreements that are important to understand. Before signing a prenuptial agreement, or if you have additional questions, contact a local North Dakota family law attorney for advice.

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