Prenuptial Agreements in South Carolina

A look at prenuptial agreements in South Carolina.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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Contrary to their public image, prenuptial agreements aren't necessarily the quickest way to end an engagement. In many cases, premarital agreements lead to increased marital satisfaction and can sometimes prevent divorce. However, in situations where a breakup is inevitable, prenuptial agreements will simplify the divorce process.

The requirements for prenuptial agreements differ from state to state. If you're thinking about a premarital contract, it's important to familiarize yourself with what makes an agreement enforceable in South Carolina. If after reading this article you have questions, please contact a local family law attorney for advice.

What is a Prenuptial Agreement?

Prenuptial agreements, sometimes referred to as "antenuptial agreements," are contracts entered into before marriage by prospective spouses. Antenuptial agreements are used to divide property, assets, and debts both during marriage and in the event of death or divorce. Prenups must be written and signed by both spouses. Finally, couples that enter into a prenuptial contract but don't ever marry won't be bound by their agreement - a marriage must take place for the agreement to take effect.

Who Should Get a Prenuptial Agreement?

Prenuptial agreements can be tailored to fit a couple's unique needs. Both rich and poor, young and old couples use antenuptial agreements. A wealthy individual may want an agreement that protects his or her assets in a divorce. Alternatively, a divorcee with children may seek a prenuptial contract to avoid another messy divorce or to preserve a child's inheritance.

If a couple doesn't have a prenup, their property will be divided according to state law during a divorce. In South Carolina, most property acquired during the couple's marriage becomes jointly-owned marital property, although some exceptions apply. An antenuptial contract allows a couple to bypass state law governing property division and permits the couple to divide property as they choose. Thus, anyone who wants to maintain control over his or her property in a divorce should get a prenuptial agreement.

What Does a Prenuptial Agreement Cover?

Prenuptial agreements come in a variety of shapes and sizes. However, most agreements will address issues that would otherwise be left up to a judge in a divorce. Specifically, an agreement may resolve any of the following issues:

  • each spouse's right to separate or marital property
  • each spouse's right to buy, sell, transfer, dispose of, or rent property owned individually or by the couple
  • the division of assets and debts upon death or divorce
  • either spouse's entitlement to alimony in the event of divorce
  • each spouse's right to ownership and management of a family business upon death or divorce
  • each spouse's right to the gifts or inheritances of the other, and
  • each spouse's entitlement to death benefits from the other's insurance policy.

Unlike wills, prenuptial agreements don't have to be notarized or signed by witnesses to be valid. Moreover, spouses can change the terms of their prenuptial agreement as long as the changes are in writing and signed by both spouses. Still, some issues involving child custody can't be resolved by a prenuptial agreement.

Can a Prenuptial Agreement Resolve Child Custody and Child Support in South Carolina?

No. Prenuptial agreements can't dictate child support and custody arrangements prospectively. Any custody decision will be evaluated by a judge and be based on a child's best interests. A child's best interests are considered at the time of the parents' separation or divorce, and never beforehand.

In some cases, parents might have mistakenly included custody and child support provisions in a prenuptial agreement. A judge will disregard any prenuptial stipulations that attempt to resolve custody or child support. However, only these provisions will be thrown out, not necessarily the entire agreement.

Will a South Carolina Court Enforce My Prenuptial Agreement?

South Carolina has not adopted the Uniform Prenuptial Agreement Act (UPAA), which sets forth guidelines and rules for prenuptial agreements. Rather, premarital contracts in South Carolina are regulated by statutory rules and case law.

Certain basic contract rules apply to prenuptial agreements. Foremost, an agreement must be in writing and signed by the potential spouses. An agreement won't go into effect until the couple marries. If the wedding is called off, the prenuptial agreement will become invalid.

Most premarital contracts survive the scrutiny of a court if the following elements are present:

  • the agreement is reasonably fair
  • each spouse signed the agreement voluntarily
  • each spouse fairly and fully disclosed his or her assets and liabilities
  • each spouse has a generally accurate picture of the other's finances, and
  • the agreement's terms don't promote divorce.

Spouses don't have to have a perfect understanding of the other's financial condition before signing a prenuptial agreement. As long as a spouse has a fairly close understanding or could have obtained an understanding of the other's assets and debts, the agreement will likely be upheld. Nevertheless, in one South Carolina case, a prenuptial agreement was struck down because a husband hid his assets from his soon-to-be wife. Although the wife signed an agreement waiving her rights to the husband's estate, she had no knowledge of the estate's value or her soon-to-be husband's assets.

Prenuptial agreements can be confusing and difficult to navigate alone. If you are considering a prenuptial agreement or have additional questions, contact a local family law attorney for advice.

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