Prenuptial Agreements in South Dakota

When two people fall in love and decide to marry, the last thing that's on their mind is divorce. Yet a sizeable percentage of American marriages end in divorce, so for many couples, the prudent thing to do is to work out a prenuptial agreement before they marry.

What Is a Prenuptial Agreement?

A prenuptial agreement is simply an agreement—an actual contract—that two people sign before they get married. It is a contract which sets out a legally enforceable plan for how the spouses will divide up their assets if they should happen to divorce. Generally speaking, prenuptial agreements are concerned with the division of property, such as land, buildings, bank accounts, and automobiles.

Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or an antenuptial agreements in some jurisdictions.

Who Should Get a Prenuptial Agreement?

If any of the following scenarios apply, couples should consider getting a prenuptial agreement:

• One or both spouses are bringing major debt into the marriage, whether they've incurred the debt separately or together.
• One or both spouses are bringing property into the marriage, regardless of whether they acquired the property separately or together.
• One spouse is much wealthier than the other, or one spouse is much poorer than the other.
• One or both spouses are remarrying.

This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact a South Dakota family law attorney for more advice.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in South Dakota can address any of the following issues:

• both spouse's property rights and obligations - it doesn't matter where or when the property is located or acquired, parties can make an agreement about who should get what if there's a divorce
• who has what rights to buy, sell, use, transfer, exchange, abandon, lease, use, assign, create a security interest in, mortgage, encumber (meaning, to take a loan against something), dispose of, or otherwise manage or control property
• the making of a will, trust, or other arrangement to facilitate the provisions of the prenuptial agreement
• the rights to the death benefit from a life insurance policy if one of the parties dies
• the choice of law that governs what state's law will interpret and decide the case if a dispute arises about the prenuptial agreement, and
• any other matter that doesn't violate South Dakota's public policy or criminal laws.

Can a Prenuptial Agreement Determine Child Custody, Child Support, and Alimony in South Dakota?

In South Dakota, premarital agreements can't limit or cap the amount of child support that one parent would have to pay to the other in the event of a divorce. The reason for this is that the right to child support belongs to the child, not the parent. Child support money may technically be paid by one parent to another, but the legal reality is that the money belongs to the child and can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Courts must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.

Similarly, child custody can't be decided in advance via a prenuptial agreement. This is because child custody awards are in the sole province of the family law courts, which are obliged to look at the facts and circumstances of each unique case and render a decision based on the child's best interests at the time the parents separate, not before.

Finally, the South Dakota Supreme Court has held that alimony cannot be pre-determined in a prenuptial agreement. Sanford v. Sanford, 694 N.W.2d 283, 289 (2005). This is because there are many types of alimony available in South Dakota, depending on the circumstances of the case. Further, alimony can be modified if circumstances change. It's impossible to foresee all the possible permutations, and courts must award alimony in an amount that's fair and reasonable.

None of this means that a prenuptial agreement can't contain an agreement about child support, custody, and alimony. If the parties divorce and decide to abide by the terms of their prenuptial agreement, then they can self-enforce provisions about child custody, support, and alimony. However, if they disagree and wind up in family court, a judge will give little to no consideration to what the prenuptial agreement says about these topics.

How Can I Ensure my Prenuptial Agreement Is Enforceable in South Dakota?

In 1989, South Dakota adopted the Uniform Premarital Agreement Act ("UPAA") which lists all the elements that the National Conference of Commissioners on Uniform State Laws believes should be present in a legally enforceable prenuptial agreement. For a prenuptial agreement to be legally valid in South Dakota, all of the following requirements must be satisfied:

• The agreement has to be in writing - an oral prenup isn't enforceable.
• The agreement does not have to be supported by consideration, which is something of value that one party gives to the other as a show of support for a contract.
• The agreement must have been written and signed "in contemplation of marriage," meaning that the parties must have negotiated and signed the agreement with a view toward a definite and upcoming marriage.

Prenuptial agreements are legally unenforceable if any of the following statements are true:

• One of the spouses didn't sign the agreement voluntarily.
• The agreement was "unconscionable," meaning that it is so grossly unfair that it would be against the interests of justice to enforce it. Whether an agreement is unconscionable is an issue to be decided by a judge as a matter of law. An agreement is unconscionable if any of the following is true:
  • One of the spouses failed to provide the other spouse with a fair and reasonable disclosure of all financial obligations and property owned.
  • One of the spouses did not voluntarily and expressly waive, in writing, any right to said disclosure.
  • One of the spouses did not, or could not reasonably have had, adequate knowledge of the other spouse's property interests and financial obligations.

Can I Change or Terminate a Prenuptial Agreement After Marriage?

Yes. After a married couple with a prenuptial agreement decides to divorce, they can modify or invalidate the initial agreement by entering into a subsequent agreement, in writing, that disavows or alters the prenuptial agreement. Both parties have to agree and the new agreement must be in writing.

Modified prenuptial agreements are known as "postnuptial agreements."