Amendment to Prenuptial

Question: Our marriage and prenuptial agreement was executed in Illinois 19 years ago. We now live in NC and would like to make an amendment to waive third party claims related to alienation of affection, criminal conversion and any related laws applicable here in NC and other states. Hoping for guidance from an Attorney/contract expert on whether the language drafted below is appropriate, and legally binding in NC, as an amendment to our premarital agreement. Appreciate any feedback on potential concerns or suggested revisions/additions as we have not yet signed the amendment. THANK YOU for your review and comments!

This AMENDMENT to PREMARITAL AGREEMENT, made this ______ day of March 2023, is between xxxxxxxx of Wake County, North Carolina, (“hereinafter referred to as “Wife”), and xxxxxxx of Wake County, North Carolina (“hereinafter referred to as "Husband”).

WITNESSETH:

THAT WHEREAS, the parties to this agreement, Husband and Wife, married on xxxxxx, hereby agree to following amendments to the Premarital Agreement executed on xxxxxxx:
1.1. Voluntary Act. Each party acknowledges that he/she has read the Amendment to the Premarital Agreement and understands its contents and provisions; that it is a fair and reasonable agreement to each of them, having due regard to the conditions and circumstances of the parties hereto on the date hereof; that each has signed and executed the Amendment to the Premarital Agreement freely and voluntarily and without fear, compulsion, duress, coercion, persuasion or undue influence exercised by either party upon the other or by any other person or persons upon either.
1.2. Waiver Of Third-Party Claims. Each party waives and releases to the other any claims which he/she has or may have against any other person under the laws of North Carolina, or any other State or jurisdiction, for alienation of affections, criminal conversation, similar tort or any other type of action which may be allowed as the result of any relationship between the other spouse and any third person. The institution or pursuit of any such action or claim against any third party shall constitute a violation and material breach of this Agreement and, as such, both parties hereby mutually agree not to initiate any such claim(s) or legal action(s) against a third-party individual. It is, therefore, expressly understood and agreed between parties that any third person, against whom such legal action may be contemplated or advanced, may plead this provision, as a third-party beneficiary, in bar of any such claim(s) or action(s).
1.3. Specific Performance. Either party shall have the right to compel the performance of the provisions of this Agreement by suing for specific performance in the courts where jurisdiction of the parties and subject matter exists.

(agreement will be signed by both parties and certified by a notary in NC)

You would not be able to amend a premarital agreement if you’re already married.

You can, however, enter into a postnuptial agreement which is an agreement between spouses when they are already married but not separated or about to reconcile after a period of separation.

I would have to do case law research to see if a third party waiver can be included in a postnuptial agreement or if it is against public policy to include such.

The third party waiver you have provided is typical third party waiver language.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

Depending on your exact situation and whether or not third party waivers are against public policy in a premarital or postnuptial agreement, it may have more enforceability to enter into a postnuptial agreement, otherwise you can amend the premarital agreement.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

You can have a third party waiver in a separation agreement and it is not against public policy.

A third party waiver could be against public policy if for example, the parties are blindly waiving their right to sue without any knowledge of any information that could come about in the future that would lead to one party suing for alienation of affection or criminal conversation. This is why it poses a potential “against public policy” concern in a premarital agreement. I would have to research this issue to see if and how the appellate courts have ruled on this.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.