Should You Sign a Prenup?

Jonathan Breeden: [00:00:00] On this week’s episode of The Best of Johnston County podcast, we’re doing a special edition episode that we like to call Ask Jonathan Anything. And on this episode, I, Jonathan Breeden, gonna answer family law questions about prenuptial agreements. What are they? What’s in them? Who needs them? Why you might not want one, how they can help the marriage, and sometimes hurt the marriage.

So if you’ve ever had any questions about prenuptial agreements, what they do, what they don’t do, how they can help, how they can hurt, listen in.

Welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced family lawyer with a deep connection to the community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.

Jonathan Breeden: Hello, and welcome to another [00:01:00] edition of the Best of Johnston County podcast. I’m your host, Jonathan Breeden, and on today’s episode, we’re having a special edition episode that we like to call Ask Jonathan Anything. And on these episodes, our social media coordinator, Raena Burch, asks me, Jonathan Breeden, interesting questions about family law that we deal with every week here at the Breeden Law Office.

On most episodes, I, Jonathan Breeden, interview interesting community members about what they do in Johnston County and what they love about Johnston County. Small businesses local elected officials people doing community service projects nonprofits, stuff like that. But every once in a while we do these special edition episodes that we call Ask Jonathan Anything, and that’s what this episode’s gonna be, and it’s gonna focus on prenuptial agreements.

I don’t exactly know what the questions are, but they are extremely important way to plan for your marriage in case your marriage doesn’t work out. So we’re gonna get into that, but before we get to that, please like, follow, subscribe to this podcast wherever you see it, [00:02:00] whether it be on Apple, Spotify, YouTube, TikTok, X, LinkedIn, or any of the other social media channels of the Best Johnston County podcast.

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That always helps us. And tag us in your Instagram stories, Best of Johnston County. Welcome, Raena.

Raena Burch: All right. Welcome, Jonathan. All right. So I know this is something that we kinda wish we did more of, but we don’t do. Like, we wish people did more of these, right? The prenuptial agreements.

Jonathan Breeden: It depends.

Raena Burch: Depends.

Jonathan Breeden: Right? It depends. You know, nobody wants to plan for the end of the marriage, right?

Raena Burch: Yeah.

Jonathan Breeden: I think [00:03:00] that they are, they can be helpful in all marriages. But they can also be divisive as well.

Raena Burch: Yeah.

Jonathan Breeden: Particularly when you’re starting to go into it right when you’re getting ready to be married. It’s a happy time. You’re in love. And it can affect how people act within the marriage.

Raena Burch: Okay.

Jonathan Breeden: Because you’re gonna give up substantive rights that you would be entitled to as a married couple entering into a prenuptial agreement.

Raena Burch: Okay.

Jonathan Breeden: And so I’ve seen it change behaviors.

Raena Burch: I think that’s fair. Yeah.

Jonathan Breeden: Right. Because people, you know, particularly, I mean, I got tons of examples here, say it’s a young couple they have a child, and the prenuptial agreement says that everything that each spouse earns is theirs, and everything that is earned during the marriage is separate and doesn’t belong to the marriage.

So the law is anything that you earn during the marriage or gain during the marriage that you did not inherit.

Raena Burch: Yeah.

Jonathan Breeden: Or did not come from [00:04:00] the sale or the passive growth of something you had prior to marriage belongs to the marriage, and if the marriage breaks up, it would be divided equally or as close to equally as possible.

Raena Burch: Yeah.

Jonathan Breeden: Okay? Well, most prenuptial agreements say nothing is marital.

Raena Burch: Okay.

Jonathan Breeden: Everything is separate, and where I’ve seen things happen is you sign a prenuptial agreement like that, two or three years down the road, you have a child, and.

Raena Burch: Somebody’s gotta take care of the child.

Jonathan Breeden: Right, and wife thinks about staying home to take care of the child, but wife has no retirement, because if she’s not working.

Raena Burch: Yeah, at what cost?

Jonathan Breeden: Right? Wife has no income without working. Most people waive alimony if they go into a prenuptial agreement. You know what I mean? The marriage may be fine.

Raena Burch: Yeah.

Jonathan Breeden: But, like, the wife is gonna have to act in that situation in the best interests of the wife, maybe not the best interests of the marriage, maybe not even the best interests of the child.

Raena Burch: Yeah.

Jonathan Breeden: Particularly if the husband earns a substantial income in that [00:05:00] situation and would be able to afford for the wife to be able to stay home. So I mean, there’s a lot of things like that that people don’t realize because ultimately, a prenuptial agreement says that everybody kind of can take their toys and go home. You know, you can write it- … to say anything you want it to say.

Raena Burch: Yeah, that’s key.

Jonathan Breeden: And there are 100,000 different ways

Raena Burch: Yeah

Jonathan Breeden: to write it, but the standard one say that everything remains separate, and that I can buy and sell whatever property I want without the wife’s permission.

Raena Burch: Mm-hmm.

Jonathan Breeden: I can invest

Raena Burch: That you own

Jonathan Breeden: that I own, right.

Raena Burch: Okay.

Jonathan Breeden: That I buy with the money

Raena Burch: That’s very important, that you own

Jonathan Breeden: right, right, right, that I buy

Raena Burch: Yeah

Jonathan Breeden: with the money that I earned during the marriage.

Raena Burch: Yeah.

Jonathan Breeden: And so, you know, it, it can change the way spouses look at the marriage because I do think if you are subject to a prenuptial agreement, you have to be thinking about how all these different decisions affect me [00:06:00] sort of as an individual- because that’s all I, as the individual, am going to get

Raena Burch: Yeah

Jonathan Breeden: because I’m not entitled, because I waived it to what the other spouse may have earned or saved or put in retirement- … you know, or business they ran or started or grew or any of that. So, you know, they can be good, but they can also- Be bad in that way.

Raena Burch: Yeah.

Jonathan Breeden: In, in my opinion. Now everybody’s got a different opinion.

Raena Burch: Yep.

Jonathan Breeden: Where I think they are extremely important, and where I think they are more necessary than otherwise, is in second and third marriages.

Raena Burch: Mm.

Jonathan Breeden: When you’re later in life, when you’ve had, you know, you’ve amassed substantial assets.

Raena Burch: Yep.

Jonathan Breeden: 45, 50, you’re mid-career like me

Raena Burch: yeah

Jonathan Breeden: you have a business like I do, y- you know what I mean? That you have built prior to any marriage. I’ve been married, you know, 19 years.

Raena Burch: Yeah.

Jonathan Breeden: I’m not getting divorced, but what I’m saying is if you’re somebody like me-

Raena Burch: Yeah

Jonathan Breeden: and you own a business [00:07:00] that has some value and you’re going into a marriage, you know, you’re gonna want to make sure, and you have children-

Raena Burch: Yep

Jonathan Breeden: and you wanna protect that business and its value for your children, you’re gonna want a prenuptial agreement that says, “This business, the Breeden Law Office, is mine- … whatever growth it has w- will belong to me, and my children can inherit it or sell it or get the proceeds from it

Raena Burch: Yeah

Jonathan Breeden: or, or get the proceeds from the, from, from the business if one of them becomes an attorney or whatever.

Raena Burch: Yeah

Jonathan Breeden: you know, you can’t have non-attorney ownership in North Carolina, but y- you know what I’m saying. So like, like that’s the kind of thing where, Or you’ve got, right, especially if you’ve got kids, I’m actually sending them to college.

Raena Burch: Yeah.

Jonathan Breeden: You know, that kind of stuff. Or you are retired and you’re a widow, and now you’re in your 60s and you’re remarrying, and you have everything that you, your first marriage amassed

Raena Burch: Mm-hmm

Jonathan Breeden: from, from houses to cars, to stock accounts. Now, everything that you come into the marriage [00:08:00] with is presumed to be yours

Raena Burch: Yeah

Jonathan Breeden: separate property. Anything you inherit is presumed to be your separate property.

Raena Burch: Yeah.

Jonathan Breeden: But you also need to make, if you do a prenup, you can make it real clear what that is.

You can make sure that any of the growth on it happens, and that you can do whatever you want with it. Because even if you had it prior to the marriage, but when you get married without a prenup, your spouse has an ownership interest in any property that you own.

Raena Burch: Yeah.

Jonathan Breeden: Now, would a court give it an actual value in a divorce?

I doubt it, but it is an ownership interest that they have to sign. If you, if you sign a deed, you buy something, they have to sign. Well, what if they don’t wanna sign?

Raena Burch: Yeah.

Jonathan Breeden: Right? Like, even if you’re married spouses look at things differently.

Raena Burch: Yeah.

Jonathan Breeden: What if they say, “I’m only gonna sign if you transfer $25,000 into my separate account”?

Raena Burch: Yeah.

Jonathan Breeden: I mean-

Raena Burch: What are you gonna do?

Jonathan Breeden: I’ve, I’ve seen this happen-

Raena Burch: Yeah

Jonathan Breeden: not that long ago. So like I said, I mean, it’s just, you know, there’s, there’s different [00:09:00] ways of going about doing it. But I do think if it’s a second or third marriage and you are mid-career to retired

Raena Burch: Mm

Jonathan Breeden: and you have children, you have to think real hard about making sure that you get a prenuptial agreement that will protect what came in it.

Even if you’re okay with the marriage having stuff, you need to define what it was- yeah commingled, they get murky

Raena Burch: All the time

Jonathan Breeden: That you, you pledge an account or a piece of property for a mortgage that the marriage is gonna get on a beach house, and all of a sudden because you pledged it, it gets marital components to it. I mean, we could do this for hours.

Raena Burch: Yeah.

Jonathan Breeden: But I’m, I’m dead serious, literally for hours and not get through all the scenarios that can happen. So I think that’s where it’s important. Maybe less important for the young family getting started. They’re gonna have children together, they’re gonna build a future together.

But if you’re, if, if it’s your second or third marriage, I think almost everybody [00:10:00] should

Raena Burch: Should

Jonathan Breeden: should have one.

Raena Burch: Yeah.

Jonathan Breeden: I really do. And most people don’t. And, and, you know, they, you know, it can be a little expensive to, to write, but I’m saying I think that gets to be real important. Because I mean, there’s all these things too right now about, you know, what your spouse is entitled to as just the fact that they’re married.

Like, whether you have a will or not, the intestate laws.

Raena Burch: Yeah.

Jonathan Breeden: And, and what they, what they could get or not get. And a prenup’s gonna say they waive their intestate rights. you know, and so the stuff can

Raena Burch: Yeah

Jonathan Breeden: all go to the children. Yeah. And so I mean, there’s stuff like that. So I don’t wanna get too confusing here.

Raena Burch: Yeah.

Jonathan Breeden: And I could tell a million different stories, but, but just overall- … and I don’t know what the questions are gonna be, and I’ve already talked for like a few minutes here. You know, I think not as important for first marriages, but I think it’s very important- … the closer you get to retirement, and especially when you have children.

Raena Burch: Yeah. Okay. And, and I’m, do, I do wanna throw in a quick caveat with all of that. So I know you talked about, you know, like a standard prenup, and this is usually in there, and this and all that, and this is a contract. [00:11:00] So, obviously you can go based off of like this is what’s normally in there, but it doesn’t have to go in there.

You can add other things in there. It’s entirely up to the two people who are agreeing

Jonathan Breeden: correct

Raena Burch: to whatever this contract is.

Jonathan Breeden: Correct.

Raena Burch: So the standard doesn’t mean it has to be in there or you have to agree to it. That’s just kind of what people go. It’s the baseline.

Jonathan Breeden: Right.

Raena Burch: It’s what they start off with.

Jonathan Breeden: Right. Right. Most prenuptial agreements start off with there is not gonna be anything that belongs to the marriage, the two parties in the marriage make a joint decision to title it jointly.

Raena Burch: Yeah.

Jonathan Breeden: And if they do, then you would, this piece of property or whatever it was, car, however you wanna title it.

Raena Burch: Yeah.

Jonathan Breeden: Would then belong to the marriage, and the prenuptial agreement is most likely gonna say, “If and when we separate, whatever is jointly titled will be sold, and we will split it 50/50.”

Raena Burch: Yeah.

Jonathan Breeden: “We’re not gonna go to court and fight about it. It will be [00:12:00] sold within six months.

Raena Burch: Yeah.

Jonathan Breeden: And we will split the net proceeds at the closing,” whether it’s a car, whether it’s a house, whether it’s a boat.

Raena Burch: Yeah.

Jonathan Breeden: Or anything like that.

Raena Burch: Yeah.

Jonathan Breeden: So it’s not like the marriage can’t have anything but the presumption, the prenup is gonna reverse the presumption.

Raena Burch: Yeah.

Jonathan Breeden: The law is anything the marriage gets after the date of marriage that is from the fruits of the efforts of the marriage belongs to the marriage, and the prenup is gonna say “none of that belongs to the marriage. It all belongs to the person who earned it.”

Raena Burch: Yeah.

Jonathan Breeden: And of course, you know, we just had the wedding of the century with Travis Kelce and

Raena Burch: And Taylor Swift

Jonathan Breeden: and Taylor Swift.

Raena Burch: I’m sure their prenup was crazy.

Jonathan Breeden: I’ve heard it is many, many, many pages.

Raena Burch: I have no doubt.

Jonathan Breeden: And, you know, it probably should be.

Raena Burch: It should be.

Jonathan Breeden: Yeah. Right. I mean, she is a billionaire-

Raena Burch: Yeah

Jonathan Breeden: with a B.

Raena Burch: Yes.

Jonathan Breeden: And she has all of this [00:13:00] product out there, all of this- … I, I don’t know what you wanna call it, creation. Like all this

Raena Burch: Yes

Jonathan Breeden: music.

Raena Burch: Yeah.

Jonathan Breeden: I, I mean, you know, she just spent-

Raena Burch: Intellectual property

Jonathan Breeden: intellectual property.

Raena Burch: Yeah.

Jonathan Breeden: She has this brand. I think she spent nearly $300 million to buy her music back

Raena Burch: Yes

Jonathan Breeden: her original music back

Raena Burch: She, yeah

Jonathan Breeden: if I’m not mistaken.

Raena Burch: Yeah, she re-recorded a lot of it so she

Jonathan Breeden: Right

Raena Burch: could have

Jonathan Breeden: Right …

Raena Burch: rights to it again.

Jonathan Breeden: And then she bought the, the originals back

Raena Burch: Yeah

Jonathan Breeden: from whoever got it, and stuff like that. So, and look, Travis Kelce, a successful NFL football player. I

Raena Burch: was gonna say, there’s, yeah.

Jonathan Breeden: Right. He doesn’t need- We’re

Raena Burch: not, not- nothing on him. He’s amazing.

Jonathan Breeden: Right. He doesn’t need anything-

Raena Burch: No …

Jonathan Breeden: from her. He’s worth 35, $40 million

Raena Burch: Yeah

Jonathan Breeden: probably at least

Raena Burch: On his own

Jonathan Breeden: if not more. Yeah. If, yeah,

Raena Burch: probably more at

Jonathan Breeden: this point. Right. Right. But, you know, like, you gotta understand, I mean, you know, you gotta make sure that, you know, and I’m pretty sure that it was Taylor Swift’s father who was really

Raena Burch: Yeah

Jonathan Breeden: pushing, and he’s sort of her business manager. He’s done a lot of great things for her. He, he’s a, he’s a really good business guy and you know, make sure everything’s good. Like

Raena Burch: Yeah

Jonathan Breeden: you know, and, and I, and everything’s [00:14:00] probably fine. Now, one of the mistakes that we see with prenups, and, and we see this in probably Golly, probably 80, 90% of the calls we get on prenuptial agreements is they can get too close to the wedding.

Raena Burch: Oh, yeah.

Jonathan Breeden: Right? So the law is they really need to be executed more than 30 days prior to the date of the wedding. If you get within 30 days of the date of the wedding, there is an argument that one spouse can make against the other spouse if they divorce that they were under

Raena Burch: duress

duress, ’cause there’s a ’cause there’s a deadline.

Right,

Jonathan Breeden: right.

Raena Burch: There’s an upcoming deadline.

Jonathan Breeden: That they were not freely consenting

Raena Burch: Yes

Jonathan Breeden: to the contract, and the duress was, “We’ve got a caterer. We’ve got… We’ve sent out invitations.” “We’re 20, $25,000 into this

Raena Burch: Yep

Jonathan Breeden: and we can’t get it back, and people have booked hotels, and we bought dresses, and, you know

Raena Burch: Yeah

Jonathan Breeden: and, and while [00:15:00] I don’t really like it, I’m not gonna disappoint my family, and I really wanna get married.” And

Raena Burch: Yeah

Jonathan Breeden: and so now that’s not a given. We, we had one where the person did not see it till three hours before the wedding. This was about two years ago in our office. Oh my goodness. And, and we repre- and, and the person was an immigrant, and we represented them, saying that he was under duress.

He did not see it until three hours before the wedding, and the court ruled that it was valid. I think if we’d appealed it, we probably would’ve won. Client didn’t have the money to appeal, decided to just accept it. And so I mean, it’s not a given, but it is… It, it does give you a challenge, and

Raena Burch: Yeah

Jonathan Breeden: more times than not, you can win a duress argument if you get within 30 days. Got it. And the majority of the time

Raena Burch: Yeah

Jonathan Breeden: when I get a call about a prenup, I’m getting a call, and we’re already within 30 days

Raena Burch: Yeah

Jonathan Breeden: of the wedding.

Raena Burch: Yeah.

Jonathan Breeden: Like, I mean, the first question is, “What is the wedding date?” Like, three weeks.

Now, we can put it together, [00:16:00] but like, you have to tell them

Raena Burch: Yeah

Jonathan Breeden: i literally put it in the fee agreement, that you are within 30 days of your wedding. This is by fault, by, by default, an argument of duress. This may or may not hold up. If you would like to enter it, it is evidence of a thing, and it may hold up, but it may not.

Raena Burch: Yep.

Jonathan Breeden: And you know, it’d be my advice, if you really want it to hold up, you move that wedding date. Well, nobody’s moving the wedding date.

Raena Burch: No, yeah, nobody’s gonna move the wedding date.

Jonathan Breeden: Especially if they’ve already booked. Now, now, if you’re gonna go to the courthouse or you’re gonna elope-

Raena Burch: You’re gonna… yes, that’s different …

Jonathan Breeden: but, but most people, that’s not what’s going on.

Raena Burch: Yeah.

Jonathan Breeden: You know what I mean? Or we get calls and they don’t want- the, we’re getting a call and it’s the soon-to-be wife’s father, and it’s not the, it’s not the sp- it’s not the wife

Raena Burch: Yeah

Jonathan Breeden: it’s not the future husband.

Raena Burch: Yeah, it’s not either

Jonathan Breeden: of the actual parties.

It’s a family member who really wants to see this happen.

Raena Burch: Yes.

Jonathan Breeden: Well, we can’t represent them. We gotta represent-

Raena Burch: Yes …

Jonathan Breeden: you know, like, I mean-

Raena Burch: The actual people in the contract

Jonathan Breeden: we’re in the contract.

Raena Burch: Yeah.

Jonathan Breeden: Correct. So, you know, so it’s, it’s interesting. But I mean, here’s the thing, even if your daughter or son is married to somebody that you [00:17:00] dislike, and that you do not trust, and you don’t believe this marriage is gonna work, and you’re concerned about what they may inherit-

Raena Burch: Mm-hmm

Jonathan Breeden: uh, you can put it in a trust

Raena Burch: Yep

Jonathan Breeden: and protect, you know, a whole lot of people.

Raena Burch: Yep.

Jonathan Breeden: And, and have a trustee- … and it not really absolutely belong to your son or daughter that’s in this marriage that you disagree with.

Raena Burch: Mm-hmm.

Jonathan Breeden: So there are a lot of things you can do to keep it away from your in-law, daughter-in-law, or son-in-law that you may dislike.

Raena Burch: Yeah.

Jonathan Breeden: And you know, so there’s that as well .

Raena Burch: And, correct me if I’m wrong, but inheritance isn’t part of the marriage assets.

Jonathan Breeden: It is not.

Raena Burch: Unless you commingle it.

Jonathan Breeden: Unless you commingle it.

Raena Burch: Okay.

Jonathan Breeden: And I got lots of stories about commingling.

Raena Burch: I know you do. I know you do.

Jonathan Breeden: And it can be as easy as putting it into an account that has the other person’s name on it. You can commingle. The biggest mistake we see when people don’t realize is, if you go pledge, like we talked about a few minutes ago, if you go pledge a piece of property, or you [00:18:00] go pledge a bank account, or you go pledge a stock account as any kind of collateral on something for the marriage, then you have commingled.

Raena Burch: Got it.

Jonathan Breeden: Because now this property is on the hook for something the marriage has. And if the marriage doesn’t do it, this property’s gonna be. That is commingling.

Raena Burch: Yep.

Jonathan Breeden: And I think a lot of people get confused by that. But that’s, you know, you’ve got a stock account and you inherit an IRA.

Raena Burch: Yeah.

Jonathan Breeden: You know, and you just move it over, and you put it in. You roll it into an IRA that’s in you and your spouse’s name. Okay, well, now you’ve given that to the marriage.

Raena Burch: Or same thing with, you know, you take money that you’ve inherited and you update your house.

Jonathan Breeden: Correct. Correct. Correct …

Raena Burch: You remodel your kitchen.

Jonathan Breeden: Right, or you completely remodel your house.

Raena Burch: Yeah.

Jonathan Breeden: Right. I mean, I’ve seen it where people will take, you know, $3-400,000 they inherit and completely redo a house.

Raena Burch: Yep.

Jonathan Breeden: And you know, that now belongs to the marriage.

Raena Burch: Yeah.

Jonathan Breeden: And that’s fine too. I’m not saying don’t do that.

Raena Burch: Yeah.

Jonathan Breeden: I’m just saying.

Raena Burch: Be aware.

Jonathan Breeden: Right. Be aware, and there’s a lot of ways that [00:19:00] this inherited property can be commingled with marital property and turn it to a marital asset.

Raena Burch: Yeah.

Have family law questions? Need guidance to navigate legal challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.

Raena Burch: And, you know, one thing with prenuptial agreements and I think they’re becoming more and more popular these days as people are just becoming more and more aware of the different laws and whatnot, especially if it’s, like you said, the second or third marriage, and you’ve done this before, and maybe you got burned the first time, and you’re a little more educated now.

But one thing, you know, I think is good to kind of keep in mind with prenuptial agreements is like, it’s not an attack on the other person. It’s not an attack on your relationship or your upcoming marriage. It’s… A lot of the times I’ve s- you know, people that I’ve talked to, and I have friends that have done it [00:20:00] and whatnot, it’s, you know, they’re like, “We would rather sit down and agree to all of these things while we’re still like happy and in love and like each other than when we’re divorced, if we’re getting divorced, and we’re upset, and we don’t like each other anymore, and now…”

Like we’ve talked about before on episodes where it’s a very emotional experience, and people are not happy, and they just wanna fight over every single little thing because they’re unhappy, and it’s, and it sucks. And so the prenuptial agreement, you know, you do that at a time when you both are still everything’s good and you’re more likely to treat each other maybe a little more fair?

Jonathan Breeden: I hope. I mean

Raena Burch: Yeah

Jonathan Breeden: you know, I mean, right. I mean, I think it’s just… like I said earlier, you know, particularly second and third marriages, you really need to be able to protect what you have amassed

Raena Burch: Yeah

Jonathan Breeden: coming into that marriage, and be able to do what you want with it so that you can leave it to your children

Raena Burch: Yeah

Jonathan Breeden: leave it to your grandchildren. You can use that money to [00:21:00] pay for your grandchildren or even your children’s college educations.

Raena Burch: Yeah.

Jonathan Breeden: Y- you know what I mean? Without being hamstrung by a spouse that may see it differently. Now, one thing that does happen, back to the original thing, where you… I, I mean, I have seen that, that situation where the wife says, “I am not gonna stay home- because we have this prenup.”

Raena Burch: Yeah.

Jonathan Breeden: And you know, and, and I’ve seen a lot of men, I mean, at, at least two or three or four cases where it really, you know, the man didn’t wanna see their child in daycare 40, 45 hours a week. But then you wanna tear up that prenup.

Raena Burch: Mm.

Jonathan Breeden: A- and, you know, and, and, and, and the wife had to do, you know, what, what… You know, I mean- Yeah … right. And so that, right.

Raena Burch: And there are different ways to handle that-

Jonathan Breeden: Well,

Raena Burch: and- … and provisions that you could do.

Jonathan Breeden: Right. And, and my concern

Raena Burch: Yeah

Jonathan Breeden: about that would be, you know, the one of the number one reasons people get divorced is over money, right?

Raena Burch: Yeah.

Jonathan Breeden: They, they don’t agree on how to spend, how to save- … what to do with the money, the time value of money.

Raena Burch: Yep.

Jonathan Breeden: You know, some [00:22:00] people value, I personally value experiences, right? I like to travel. I love live sports

Raena Burch: Yes

Jonathan Breeden: right? So that’s where I would like to spend my money.

Raena Burch: Yes.

Jonathan Breeden: Not, I, I don’t have a ton of hobbies.

I mean, I do play golf a little bit, not very well, but I do play a little bit. But really, I like to spend my free time at sporting events, concerts, and traveling.

Raena Burch: Yeah.

Jonathan Breeden: You know, other people may not

Raena Burch: Yeah

Jonathan Breeden: think that that’s where you should spend your time and money- … and stuff like that.

So, you know, and then of course, different people, some people save, some people don’t, some people are a little ahead, some people don’t, right? And so it is the reason that a lot of marriages break up.

Raena Burch: Yeah.

Jonathan Breeden: It, it really is. And that is unfortunate, and I do think before you get married, you really need to have some real hard conversations

Raena Burch: Yes

Jonathan Breeden: about finances and, and what there is and what there isn’t, and, and budgeting, and- and how you see things, and how much [00:23:00] savings you think you should have, and, and, and all of that. I do think that that’s very, I do think that that’s very important But I think a lot of what happens is unfortunately with prenups, one of the, one of the downsides can be that the, that the people in the marriage do not see the marriage as an entity.

Raena Burch: Hmm.

Jonathan Breeden: They see themself as an individual in it, and they don’t put the marriage and what’s best for the marriage over what’s best for the individual. Got it. We are naturally, innately self-centered- Hmm … creatures with a scarcity mindset because we are animals, and we have to eat, and we have to have shelter- Yeah

and we have to be warm, and we have to not overheat. And, you know, sort of these, I’m not gonna get back at mindset thing and the caveman and all that. Y- you know, I’m just saying, like- Yeah … there is that. But if a [00:24:00] marriage is going to be successful over a long period of time, each side has to give up some of their own individuality in it- and see the marriage and what is best for it over what is best for them as the individual.

Raena Burch: Yes.

Jonathan Breeden: And I think that a lot of marriages, that does not happen. Now we have a large number of people that lived together prior to marriage, and, and the hardest thing to do is live with somebody.

Raena Burch: Yeah.

Jonathan Breeden: And they start splitting up the bills, and you pay the rent, and I pay the power bill, and you pay the phone bill, and I buy the dog food. And then they get married, and it’s still the same thing.

Raena Burch: Yeah.

Jonathan Breeden: I, I… You’re still paying the rent. I’m still paying the power bill. I buy the dog food.

Raena Burch: Yeah.

Jonathan Breeden: And they, and they don’t commingle their money, and they don’t see that what they have earned belongs to the group, and that we’re both responsible for moving this entity of the marriage forward.

Raena Burch: Yeah.

Jonathan Breeden: Right? And so that is struggles, that’s a struggle in a lot of marriages.

Raena Burch: Yeah.

Jonathan Breeden: It is, can be a [00:25:00] big… It can be even harder when you have this prenup that says nothing is marital.

Raena Burch: Got it.

Jonathan Breeden: Legally

Raena Burch: Yes

Jonathan Breeden: nothing is marital.

Raena Burch: Legally.

Jonathan Breeden: And so now everybody still has to… But still, this marriage is not gonna survive if both sides are not putting it somewhat first

Raena Burch: Mm

Jonathan Breeden: and moving it forward.

Raena Burch: Yeah.

Jonathan Breeden: So, so there is some of that.

Raena Burch: Yeah.

Jonathan Breeden: And so I think you have to consider that, and particularly if you’re the spouse that doesn’t have the earning income of the other spouse. I think it’s real easy when you’re the higher-earning spouse to think, “Oh yeah, we’re just gonna do this-

Raena Burch: Mm-hmm

Jonathan Breeden: and, and they’re just going to agree.” Well- I don’t know Is

Raena Burch: that, yeah

Jonathan Breeden: Right?

Raena Burch: Is that in their best interest

Jonathan Breeden: Is that in their best- … or your best interest? Right, right. That’s exactly right.

Raena Burch: Yeah.

Jonathan Breeden: And is it in the marriage’s best interest?

Raena Burch: In the, yes.

Jonathan Breeden: Back to what I originally said of, does the spouse stay home and take care of these kids, or do they keep working because they have to have something, they have to have retirement- Yeah

they have to have money, they need savings, stuff like that. Yeah. So it’s a bigger question, [00:26:00] particularly with young marriages, you know, to, to be had.

Raena Burch: Yeah.

Jonathan Breeden: I think it’s a lesser question, but still a question because once again, it’s still an entity-

Raena Burch: Yeah …

Jonathan Breeden: for marriages down the road, particularly as you get older.

Raena Burch: Yeah. Well, here’s a, okay, so here’s a question. So obviously the prenuptial agreement, like you said, has to be done before the date of the marriage, preferably more than 30 days. Now, do they need to like, if they’re going to enter into a prenuptial agreement, do they have to think of every scenario and put that in and before they sign it, do that?

Or can it evolve with the marriage? Can they amend it? How does that work?

Jonathan Breeden: Yeah. You don’t have to think of every scenario.

Raena Burch: Okay.

Jonathan Breeden: And most of the ones that attorneys use have very broad language that cover almost every scenario. I think you probably. I don’t know if you can amend a prenup. What we often do is a postnup.

And we’ll do a podcast on those which you know, in the future, so keep listening in. And a [00:27:00] postnuptial agreement acts similar to a prenuptial agreement, but they’re entered after the date of marriage.

Raena Burch: Okay.

Jonathan Breeden: And they’re a little different than prenuptial agreements, but they sort of do the same thing.

Raena Burch: Yeah.

Jonathan Breeden: And what a postnuptial agreement says is, if we separate, even though we are already married, this is what we’re gonna do with the property. And this is what’s gonna happen to the property moving forward. So it looks like a prenup, but it is treated a little differently, both of which are legal in North Carolina.

Raena Burch: Yeah.

Jonathan Breeden: And so, you know, you do something like that.

Raena Burch: Got it. So you may not be able to amend the prenup, but you might be able to do, you know, okay, everything in the prenup we’re gonna push over to this postnup, so that still applies and it’s still good.

Jonathan Breeden: Right. Right.

Raena Burch: But the things we wanna amend or change because the marriage has moved forward things have happened, we’ve had kids, you know, one of us to stay home, then you put that in the postnuptial agreement.

Jonathan Breeden: Right. And my gut is you probably could find a way to amend a prenuptial agreement. I’ve not done that. What I usually do is it’s easier to do a postnuptial agreement.

We have a better snapshot of kinda what there is.

Raena Burch: Yeah.

Jonathan Breeden: What may not be covered by the prenup, or there’s some debate that the people wanna [00:28:00] be clear about.

Raena Burch: Yeah.

Jonathan Breeden: And stuff like that. And, you know, we’ll do a separate one on postnups. But where we often see postnuptial agreements is when there has been an affair.

And one side that got cheated on is willing to give the other side a chance, but if there’s, if there, if it doesn’t work, they want to solidify what is going to happen. Yes.

And that’s, you know, sometimes we do postnups in other situations, but that is a fairly common one where they wanna make, give it work, but before somebody is willing to forgive and move on.

They wanna make sure it’s clear as to what is going to happen if they

Raena Burch: If it happens again

Jonathan Breeden: if it happens again.

Raena Burch: Yeah.

Jonathan Breeden: And that’s something else I was-

So, or it just doesn’t work out.

Raena Burch: Or just doesn’t work out.

Jonathan Breeden: It just doesn’t work out.

Raena Burch: So- But that was something I was gonna bring up with the prenuptial agreements,

Is that something that you see often with prenuptial agreements, is clauses for infidelity and like, ’cause in North Carolina, I know we’ve talked about on like previous Ask Jonathan Anything episodes, where [00:29:00] does infidelity affect the divorce? And for the most part, kinda not really.

Jonathan Breeden: No. Infidelity has almost nothing to do with divorce in North Carolina. But you can put an infidelity clause in the prenuptial agreement. And you can put one in the postnuptial agreement.

Raena Burch: Yeah.

Jonathan Breeden: I mean, you can put an infidelity clause that voids the entire thing if there’s infidelity.

Raena Burch: Yeah.

Jonathan Breeden: So, I mean, there are a lot of things you can do. Once again, as you said earlier, these contracts can say everything, very little, almost nothing.

Raena Burch: Yep.

Jonathan Breeden: I’ve done prenuptial agreements over just a single piece of property.

Raena Burch: Oh, my goodness.

Jonathan Breeden: Or a single bank account, and then everything else is the same. But like, I wanna make clear that this piece of property is my separate property, and I can do what I want with it in the future, and any money that comes from it will belong to me, that I can reinvest separately.

Raena Burch: Okay.

Jonathan Breeden: I mean, it can be that simple.

Raena Burch: I mean, if it’s that important to you, yeah.

Jonathan Breeden: You could say that simple piece of property.

Raena Burch: Yeah. or it can be 50 pages long.

Jonathan Breeden: Right. Absolutely.

Raena Burch: And like you [00:30:00] said, you, everybody should have a financial conversation before the marriage.

Jonathan Breeden: Right.

Raena Burch: With or without a prenup.

Jonathan Breeden: Absolutely. And if you’re thinking about doing a prenup, each side needs their own lawyer.

Raena Burch: Yes.

Jonathan Breeden: One lawyer cannot represent both sides, because each side is giving up legal rights that they have under North Carolina law as a married couple, and a, one attorney cannot explain to both sides what they’re giving up and whether it is a good idea or a bad idea.

Raena Burch: Yes.

Jonathan Breeden: So each side needs their own lawyer, or the lawyer who writes it cannot represent both sides. And our advice to the two spouses would be completely different.

Raena Burch: Yes.

Jonathan Breeden: And, and, and they often come together to the appointment.

Raena Burch: Yeah.

Jonathan Breeden: And we have to say, “We cannot-

Raena Burch: See both of you

Jonathan Breeden: represent both of you. I can write what y’all have agreed to, and I can give you my opinion to husband. I cannot speak to the wife, I cannot give advice to the wife.

And if I write it and the wife signs it without a lawyer, [00:31:00] that’s fine, but she didn’t get any advice from me. If you, husband, wanna go tell her everything I just said to you, I can’t stop you.”

Raena Burch: Yep.

Jonathan Breeden: “That’s, that’s, that’s your right.” “But I cannot give advice to that person.” And- So each side needs their own lawyer, or the lawyer can only represent one side, because they’re both giving up rights.

And so in negotiating the contract, they’re actually opposites of each other- … in the negotiation, because each side has their own rights that need to be protected.

Raena Burch: Yes. And I know you said it should be signed at least 30 days before the date of the marriage. So when would you suggest they start looking for lawyers or hiring a lawyer?

Jonathan Breeden: I would start the week after I got engaged. I’m dead serious.

Raena Burch: I mean, that’s fair.

Jonathan Breeden: I’m dead serious. I would start as soon as I got engaged.

Raena Burch: Okay.

Jonathan Breeden: So that all of this stuff can be straight. And if you’re not gonna come to an agreement, and this relationship may break up over the prenup. Do it before you spend any money.

Raena Burch: That’s fair. Yeah.

Jonathan Breeden: Right.

Raena Burch: So if they’ve set a date [00:32:00] and it needs to be at least 30 days before, how long does it thus take to negotiate?

Jonathan Breeden: I mean, we need at least 30 or 45 days, particularly if each side’s gonna have an attorney.

Raena Burch: Yeah.

Jonathan Breeden: To try to get to this. You know what I mean? And I think back, and this ought to be the last question on this, I worked on one probably 10 years ago and we were negotiating it right up to the end.

Raena Burch: Oh my goodness.

Jonathan Breeden: Like literally the last draft was on Friday and the wedding was on Sunday, and they ultimately got married without it.

Raena Burch: Well, so they did all this work and then they just didn’t.

Jonathan Breeden: Right, right.

Raena Burch: Oh, my goodness.

Jonathan Breeden: Because I was representing the wife, and I think the husband and the husband’s lawyer determined that the terms under which the wife would sign it were worse than if they just got divorced down the road.

Raena Burch: Oh, so yeah, so she’d maybe get more out of it.

Jonathan Breeden: Correct.

Raena Burch: Okay. Yeah that is [00:33:00] something to think about.

Jonathan Breeden: Right, right. And we worked on it and worked on it. And I’m thinking, man, like, I mean, it was wild. And, you know, and ultimately and I don’t know what happened. I don’t know if they’re still married.

I don’t know. I hope they are.

Raena Burch: I hope they are too.

Jonathan Breeden: But that does happen.

Raena Burch: Yeah.

Jonathan Breeden: You know? It’s like you can’t come to terms, get married anyway.

Raena Burch: Yeah. And then just deal with the laws of whatever, of the whatever state you’re in for divorce.

Jonathan Breeden: Right. That’s exactly right.

Raena Burch: All right.

Jonathan Breeden: That’s exactly right. So anyway. Well, cool. So if you are thinking about getting married or interested in, in whether a prenuptial agreement would be good for you or somebody you know, or just wanna get some more information about it, you can give us a call here at the Breeden Law Office at 919-661-4970.

Can reach out for, to us at breedenfirm.com. Be glad to look at it, tell you what we think. But only can talk to one side, not both. And you know, it’s something that I think everybody, particularly as I said earlier, second, third marriages down the road as you get older, should really think about prior to getting married.

It’s something that should be discussed probably before you even get engaged, to be honest.

Raena Burch: Yeah.

Jonathan Breeden: To be honest. But anyway as, as we mentioned earlier, please like, follow, [00:34:00] subscribe to this podcast wherever you see it, whether I’m on Apple, Spotify, YouTube, TikTok, X, LinkedIn, or any of the other social media channels, the Best Johnston County Podcast.

And make sure that you tag us in your Instagram stories, Best of Johnston County. Leave us a five-star review down below. And listen in every Monday morning, the Best of Johnston County podcast comes out, has for over three years. We’ve had a lot of great guests on in the past. We got a lot of great guests coming up in the next few weeks, so keep listening in.

Until next time, I’m your host, Jonathan Breeden.

That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.

If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. [00:35:00] com.