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  • Adam Millendorf

The Love Has Returned, And So Has The Marital Interest

Many clients are surprised to hear that under North Carolina Law, their spouse is automatically vested with certain marital rights in their individually owned real property - even if they are the only ones on title, and even if the property was acquired before they got married. They are even more surprised to hear that, because of these marital rights, their spouse is going to be required to sign things like a deeds or deeds of trust. These rights vest at the time of marriage and are extinguished at the time of divorce. However, there are times where title holders just want to have completely control over their property and be able to freely convey or encumber the property without having to get their spouse involved. This can easily be done by having the spouse execute a document which waives their marital interest and rights in the property. What happens if the title holder and the spouse get a divorce but later decide to get remarried, what happens then? Is the original waiver of marital interest still valid when it comes to the new marriage? When the title holder and their spouse get a divorce, the marital interest that their spouse had and waived was extinguished. Getting remarried to the same person does not restore the original marriage, it is an entirely new legal relationship. With it comes new marital interest, just like if the title holder went on to marry someone else. This would mean that the document waiving marital interest that their spouse signed during the first marriage is likely not going to be valid during the second marriage, because the marital interest that was waived no longer exists and there is new marital interest. If the title holder wants to once again have free control over the property, a new document will need to be signed by their spouse which waives the new marital interest.

Is there a way around this? Yes, with a little bit of creative drafting. A lot of documents that waive marital interest are preemptive in that they account for property that may be acquired in the future as opposed to what is already owned. Some documents like Premarital Agreements are made to deal with property rights in anticipation of an upcoming marriage rather than a current one. With that in mind, a good attorney could include a provision in a document waiving marital interest so that, in the event of divorce and remarriage of the title holder and the same spouse, it is automatically effective as a waiver for the new marital interests of the spouse. Just like a title holder is surprised to find out their spouse automatically has rights to their property, they'd probably be even more surprised if their spouse's waiver of those rights is now useless because they decided to give marriage another chance and are back at square one.

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