Just as the settlement of property rights can be established with a premarital agreement, a property settlement agreement can create similar rights after the dissolution of a marriage. Premarital agreements and property settlement agreements are both staututorily authorized. Property settlement agreements that provide for distribution of marital property or divisible property that are deemed as equitable by both parties will be enforceable. The difficulty is determining what happens when both parties disagree on the equability of the agreement. Because of this importance, having an attorney address these concerns at the outset is wise.
Property settlement agreements between a husband and wife may be upheld whether they are executed before, during, or after marriage. This is in stark contrast to both premarital agreements and separation agreements. In North Carolina the courts have made a distinction between property settlement agreements and separation agreements. It is important for your lawyer to understand the differences between these two agreements and draft those documents accordingly.
There are some very important distinctions between property settlement agreements and premarital or separation agreements. A husband or wife may have their obligations under a property settlement agreement discharged by bankruptcy, whereas child support and alimony cannot be. The obligations under a property settlement agreement will last even after death or remarriage but alimony will generally terminate upon remarriage or death. Payments made pursuant to a property agreement cannot be modified without the consent of both parties, but if payments are considered alimony, they may become modifiable if the agreement is ever incorporated into a court order or judgment. Lastly, should a husband and wife resume their marital relations, most provisions in the separation agreement will become unenforceable, whereas the property settlement agreement will stay enforceable
Oral property settlement agreements concerning personal property may be enforceable without writing, but the best practice is to always have the agreement in writing and notarized. Property settlement agreements related to real-estate and other property must be in writing to be enforceable.
