Prenuptial Agreements In South Carolina

Marriage is not only a joyful social milestone but an important legal contract. It joins together two individuals in the eyes of the law and gives them many additional rights, including interest in each other’s property. South Carolina law considers most assets and debts that a couple acquires after the date of their marriage to be “marital property” that they own jointly. If a couple wishes to divorce, their marital property is divided by their agreement or at the direction of the family courts.

However, South Carolina law also allows the couple to agree to exclude specific property from being considered marital property. To do so, both individuals must voluntarily sign a written agreement detailing their wishes. Each party must be separately represented by counsel. Both parties must have made a full financial disclosure to each other in compliance with the family court rules, detailing their income, debts, and assets.

These agreements, called “antenuptial,” “prenuptial,” or “prenup” agreements, can have many benefits. The primary purpose of a prenuptial agreement is to determine how a couple’s finances, assets, and real property will be divided and settled if they divorce. While some people may consider them unromantic, discussing finances before entering a marital union can benefit a couple. It can help both spouses understand their current financial position and long-term financial outlook.

Individuals marry later in life than they used to, and many people marry more than once during their lives. Each spouse brings significant assets, debts, and other financial considerations to the partnership in many modern marriages. A prenuptial agreement can help ensure that, in the case of divorce, these assets and debts are distributed in a way that both spouses think is fair at the time of their marriage.

Who Benefits from a Prenuptial Agreement?

Many couples can benefit from entering into a prenuptial agreement, not just those who are wealthy. Preparing a premarital agreement forces a couple to discuss their assets, liabilities, and financial obligations. Having this discussion with a neutral third party before conflict arises can help a couple learn how to communicate openly about financial matters in a productive way.

Prenuptial agreements can protect individuals who enter a marriage with personal and financial assets. They can protect a spouse from taking on legal responsibility for the other spouse’s pre-existing personal debt or financial obligations. They can also help ensure the financial security of children and family members from a previous marriage or relationship.

What Does a Prenuptial Agreement Cover?

A prenuptial agreement can cover many different financial possibilities, and a couple can tailor their agreement to meet the needs of their unique circumstances. Some issues that a prenup can address include:

  • Ownership of specific real or personal property (such as collectibles, art pieces, vehicles, burial plots, jewelry, and more).
  • Rights to each spouse’s future earnings.
  • Obligation for current or future debts.
  • Allocation of income streams like dividends or insurance proceeds.
  • Ownership and management of a business owned by one or both spouses.
  • Entitlement to death or insurance benefits.
  • Rights of each spouse to alimony after divorce (including waiving the right to receive alimony).

Notably, a prenuptial agreement may not address child custody or child support issues, either for existing or future children.

How Does a Couple Enter an Enforceable Prenup?

South Carolina courts will generally uphold a prenuptial agreement if both parties execute it knowingly and voluntarily. Both parties should be represented and advised by independent legal counsel to understand the agreement they are signing. However, a court may sometimes declare enforcement unconscionable and refuse to enforce a prenup’s terms. These include:

  • When one spouse executed the document involuntarily (under threat, coercion, or duress).
  • If a document is fraudulent.
  • When one spouse did not fully and accurately disclose their assets and liabilities.
  • Cases where the facts and circumstances at the time of enforcement have changed, making it unfair or unreasonable to enforce the agreement.

Some premarital contracts include a “sunset” provision that ends the agreement after a certain number of years of marriage or some other event (such as the birth of a child or purchase of marital property). Unless it explicitly states otherwise, a prenuptial agreement will remain in effect for the length of the marriage. However, the parties may change or revoke it at any time, so long as the changes are in writing and signed by both spouses (subject to the general prohibitions against coercion and fraud).

Consult With an Attorney About a Prenuptial Agreement

Both parties must have their own legal representation when negotiating and signing a prenup. The experienced family lawyers at Indigo Family Law can help make sure the contract is drafted correctly and complies with all applicable laws, is enforceable and executed correctly, and you and your spouse understand your rights and responsibilities.

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