It seems like every bride, groom, parent and friend has a different opinion about prenuptial agreements. However, whether you are a romantic or a realist, or somewhere in between, South Carolina’s highest court has recognized prenuptial agreements as being “…highly beneficial to serving the best interest of the marriage relationship” (Stork v. First Nat’l Bank of S.C., 281 S.C. 515, 516, 316 S.E.2d 400, 401 (1984)).
A prenuptial agreement is a contract signed before a marriage to determine the financial rights of each party should they divorce. In my line of practice, I find that in certain situations, entering a prenuptial agreement is a wise decision—as well as a decision that should be entered into after careful consideration.
Thankfully, case law provides guidance in determining how to enter a prenuptial agreement by setting forth a test to determine whether a prenuptial agreement is enforceable. In Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003), South Carolina’s Supreme Court asks the following three-prong test when presented with the issue of whether a prenuptial agreement is enforceable:
- Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable?
- Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
Ultimately, the terms and content of the prenuptial agreement must not be “so one-sided or oppressive that no reasonable person would make them and no fair and honest person would accept them” (Hudson v. Hudson, 408 S.C. 76, 757 S.E.2d 727 (Ct. App. 2014)).
For an initial consultation, contact the family law attorneys at Hyde Law Firm, P.A. today.