South Carolina Prenuptial Agreements
Congratulations! You’re engaged! Before you wed, consider whether a prenuptial agreement is right for you. At times, they may strengthen your union and be a valuable tool to protect assets.
What is a prenuptial agreement?
A prenuptial agreement is an agreement, made between you and your future spouse before you get married. A prenuptial agreement is effective upon marriage because the consideration for the agreement is the marriage itself. Prenuptial agreements can determine the parties’ dealings during the course of the marriage or function as a premarital settlement agreement regulating the parties’ affairs upon divorce.
Do I need a prenuptial agreement?
For a long time, people looked negatively upon premarital agreements because they assumed a separation or divorce—contrary to thinking only to a life-long marriage. However, premarital agreements may be beneficial for the marriage relationship. Consider a second marriage in which the parties want to ensure property is transferred to children of a first marriage. Also imagine a marriage in which one spouse has significant business interest with family who are wary of a new spouse. These agreements can help parties create trust between themselves and protect the interest of other third parties. Alternatively, each spouse may simply desire to know that the other party is entering the marriage for the right reasons—that even if the spouse would receive little to no assets, they still want to get married.
What does a prenuptial agreement encompass?
Premarital agreements most often define whether property is non-martial or marital, and property division upon separation or divorce. In South Carolina, property acquired during the marriage is martial property. A prenuptial agreement allows couples to decide what property becomes jointly owned and how such property would be divided.
Premarital agreements can also determine spousal support, the right to each spouses’ estate or death benefits, entitlement to gifts or inheritances from third parties, etc. These agreements can be custom suited to each parties’ unique situation.
Will the prenuptial agreement be enforceable?
South Carolina grants liberal freedom to enter into premarital agreements. Yet, the family court may disregard a prenuptial agreement if the agreement is unconscionable, unfair, or unreasonable.
To ensure your prenuptial agreement will be enforceable upon separation or divorce, we advise that a trusted family law attorney draft the agreement. The agreement must meet certain standards outlined by South Carolina statute and case law. Accordingly, premarital agreements must be:
- Made in good faith;
- Fair and equitable;
- Entered into with separate, independent legal counsel; and
- Pursuant to full financial disclosure as to income, debts, and assets.
To determine whether a prenuptial agreement should be enforced, South Carolina Courts adopted the following three-part test:
- Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
Don’t hide facts or assets! Both sides must have adequate financial disclosure. Don’t require your spouse to use a particular attorney. Begin with enough time to fully consider the agreement so that neither side is rushed into the agreement and you avoid duress. Both parties must fully understand the agreement. We strongly advise that you don’t sign anything without legal counsel!
- Is the agreement unconscionable?
The agreement must be fair enough that a reasonable person would enter into the agreement. The agreement cannot favor only one party or be excessive. Each party must have a meaningful choice when entering into the agreement.
- Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
Again, ensure that both you and your future spouse are fully aware of each other’s separate finances before the marriage and before you enter into the agreement. The court may consider the parties’ employment and assets at the time the agreement was entered as well as at the time of the divorce.
Hardee v. Hardee, 355 S.C. 382, 389–90, 585 S.E.2d 501, 504 (2003).
Note: Premarital agreements cannot waive duties and obligations of marriage such as child support, nor can they preemptively decide child custody.
Contact an experienced family attorney at Hyde Law Firm, P.A. to ensure your prenuptial agreement will be properly drafted and enforceable in family court. When drafted appropriately, premarital agreements can be highly effective and a valuable investment. Contact us today, 864-804-6330.