Postnuptial; County to File


My spouse and I both now live in NC but have a postnuptial agreement done in another state. I did not want to sign the agreement but felt I had no choice at the time. In the other state, I was advised the validity was not assured. Would NC enforce this? He is in a small county and I’m in Durham County. It’s going to be a fight over assets; no dependent children. How do I determine which county would be better for me? Thanks!


What issues does the postnuptial agreement address?


It addresses how much of our joint funds we can each spend each month to support ourselves. At the time, he was retired and I was working part time. I’ve since gone to work full time and those retirement assets are not what they used to be. We’ve never actually acted on that part of it.

What he was really going for with this agreement was an attempt to prevent me from filing for divorce and seeking anywhere near an equitable division. It says that if one of us wants to file for divorce and does so without agreement of the other, we waive rights to assets - or words to that effect. A large part of our assets are in his name only as they were from his 401K, retirement accounts and lump sum pension payout. He is determined not to share that and this was his way to attempt to prevent that from happening.


An agreement that does not dispose of your marital assets and contain a waiver of equitable distribution cannot prevent you from seeking the court’s assistance to do the same.
If the marital estate has not yet been divided you may file a claim for Equitable Distribution of assets in Durham County, although he will have the right, if he chooses to exercise it, to change venue to his county of residence.
I recommend that you take a copy of your agreement to a lawyer who specializes in Family Law to determine what, if any rights this agreement actually affects.


Even if I file in Durham County, if he opts to have case moved to his county, that will automatically happen? If that is the way the law works, would I then be better off starting out in that county? My thinking is that since it’s a small town and small county, I might be better off with an attorney there who is part of the local system, so to speak, rather than an outsider.


A change of venue will not automatically happen a judge in Durham County would have to rule on the issue first.