Today we often see high divorce rates and complicated family structures that are causing more and more individuals to turn to prenuptial agreements to define expectations and protect themselves from family law issues. Although not many enter a marriage planning for divorce or death, issues do arise and prenuptial agreements may offer another level of protection for those who may need it. In this blog, we’ll discuss what prenups are, how they differ in the state of South Carolina, a few key requirements they should include, and more.
What is a Prenuptial Agreement?
Marriage creates reciprocal legal obligations of care and support for the two spouses. Many of these obligations deal with death or divorce. However, the couple may deviate or eliminate some, but not all, such obligations through a prenuptial agreement, which is a written legal contract. For example, the parties may wish to waive alimony in the event of a divorce, or waive the right to inherit from each other, or decide who is responsible for certain debts. However, they cannot negotiate child custody, visitation, or child support. That is reserved for the courts.
Each state has its own rules for prenuptial agreements. About twenty-eight states and the District of Columbia have adopted the Uniform Prenuptial Agreement Act, but South Carolina has not. The rules in South Carolina for prenuptial agreements have evolved through case law.
Prenuptial agreements set a “floor” not a “ceiling.” Spouses in a successful marriage often are more generous with each other than the agreement requires. The prenuptial agreement is simply disregarded. A prenuptial agreement can be amended after the marriage if both spouses consent in writing.
3 Critical Requirements for Prenups in SC
While there are many requirements for prenuptial agreements in South Carolina, there are three that are critical:
- The agreement must be negotiated and signed before the marriage takes place. The marriage itself is the consideration for the contract. We advise that the agreement, in its final form with all disclosures and attachments, be executed at least thirty days before the marriage. If the marriage does not take place the agreement is void.
- Both parties must be represented by a separate attorney of his or her choosing.
- Both parties must fully disclose his or her assets, liabilities, and income sources. We also recommend that anticipated inheritances and other possible future “windfalls” be disclosed even though they may never occur.
If followed, these three rules keep the South Carolina courts out of the picture if one spouse concludes, after some years into the marriage and with twenty-twenty hindsight, that the agreement is “unfair.” The South Carolina courts generally do not “fix” prenuptial agreements to make them “fair.”
The most common flaws that jeopardize the validity of a prenuptial agreement are:
- Fraud, duress, mistake, or concealment of assets.
- A party was not independently represented by an attorney of his or her choice.
- The agreement is “unconscionable.” In Hardee vs. Hardee, a 2003 South Carolina Supreme Court case, the Court said:
“As to unconscionability, this Court has held that unconscionability is the absence of meaningful choice on the part of one party due to one-sided contract provisions together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them.”
In this case, even though the prenuptial agreement was one-sided, it was not unconscionable because the aggrieved wife had meaningful choices. She could have chosen not to marry. She had been represented by an independent attorney of her choosing who advised her not to sign it, but she did anyway.
Contact Our Experienced Family Law Attorneys About Prenuptial Agreements in SC
All in all, prenuptial agreements in South Carolina differ from other states and have many nuances that experienced attorneys have the knowledge needed to navigate your case. If you need help creating a prenuptial agreement in South Carolina, get in touch with our team today to schedule your consultation.
Harvey and Battey is your full service law firm in Beaufort, SC with over 100 years of experience and a strong reputation. With Harvey and Battey, you get the personalized attention of a small firm combined with the knowledge and resources of a large firm. Our attorneys have years of experience in many practice areas such as family law, real estate, estate planning, personal injury, and more. Contact us tooday to schedule your initial consultation with one of our family law attorneys in Beaufort, SC regarding your specific circumstances and learn how we can be your law firm for life.