SC: Prenuptial Agreements

Helping Couples Plan for Their Future

Prenuptial agreements are not just for the rich. Prenuptial agreements can be useful for parties who wish to protect separate or family property that they have obtained prior to marriage, and to ensure that the separate property cannot be considered marital property for any reason if the marriage dissolves in the future. Such contracts can detail how the parties desire for property to be divided amongst themselves, how debts are to be addressed, and how alimony might be handled, along with resolving countless other issues that a court might otherwise be asked to decide upon a separation or divorce.

Prenuptial agreements are enforceable more often than not, so you should put a great deal of thought into the execution of a prenuptial agreement. For a prenuptial agreement to be enforceable, there needs to be an honest and clear financial disclosure between other parties. If you omit assets or undervalue them, you are creating an issue that your spouse can use in the future to attempt to have the agreement set aside by a judge.

The relevant facts considered by a court when determining whether a prenuptial agreement is unenforceable can include:

• If the agreement was obtained through fraudulent means, including not fully disclosing financial assets, threats, or a mistake
• If the agreement so heavily favors one party that a reasonable person would not agree to it
• If the circumstances have changed so drastically since the agreement was made that its enforcement would now be unreasonable

Your spouse needs to have independent representation when signing a prenuptial agreement. It can be unwise to choose the attorney your future spouse hires to review the agreement. In the long term, selecting your fiancé’s attorney could hurt you if your spouse later attempts to have the agreement set aside by a judge. You should hire a family law attorney to draft and review a prenuptial agreement.

Often, future spouses use their family business attorney or a non-family law attorney to draft the agreement. Since a family court will interpret the agreement in the future if it becomes necessary, you should use an experienced South Carolina family law attorney to prepare your agreement to make sure it can be interpreted as you expect.

The further in advance of a wedding that an agreement is discussed, negotiated, and prepared, the more likely it is that everyone will have enough time to either negotiate the details or call off the wedding. Waiting too close to the wedding to sign the prenuptial agreement may cause the other party to later say that he or she signed the agreement under duress. If it is important for you to sign a prenuptial agreement with your spouse, then you need to marry someone who understands why it is necessary, and who is willing to actively participate in drafting and negotiating an agreement.

A future spouse should never allow him or herself to be bullied or sweet-talked into signing a premarital agreement. He or she should hire a trusted attorney to review the document. If your future spouse wants the agreement signed, ask them to provide the funds for you to retain an attorney to represent you.

Do not sign anything before your attorney reviews it. It could be a good idea to cancel or postpone the wedding to make sure your agreement is reviewed. A prenuptial agreement is a document every future spouse should consider and approach without dread. Consideration of a prenuptial agreement gives couples an opportunity to discuss issues that they have probably never discussed, such as their thoughts on finances and divorce. It could be very beneficial to your future marriage for both spouses to learn how similarly or differently they feel regarding issues such as money management, savings, double income families, and other sensitive topics that are rarely discussed when dating.