Understanding Premarital Agreements in South Carolina

Premarital agreements serve many purposes in South Carolina. At base, this type of agreement allows individuals to take control of what will happen if they divorce or if one spouse dies. This type of agreement is signed before a couple marries, and it is a binding contract. At Surasky Law Firm, our Aiken family law attorney has negotiated and drafted premarital agreements (which are also called prenuptial agreements). You should hire an experienced attorney to guide you through the process otherwise you could create a legally ineffective agreement.

What Does a Premarital Agreement Cover?

The typical premarital agreement covers the following issues:

What will qualify as marital or separate property. The general rule in South Carolina is that marital assets are divided equitably in divorce, but each spouse can leave with their separate property. You can use a premarital agreement to clarify which assets are marital and which are separate.
How much marital property a spouse will get in divorce. You can even divide the marital property ahead of time. Some couples simply decide how to divide certain assets, like investments or business interests, but others will allocate to each spouse a percentage.
Whether one spouse will receive alimony after divorce. A spouse can waive this right in a premarital agreement. Or the couple can decide ahead of time how much one spouse will pay and the duration of payments.
Whether one spouse will give up their right to an elective share. When a person dies, their surviving spouse has an automatic right to a share of the deceased’s estate—regardless of what’s in the will. For this reason, a spouse cannot disinherit their husband or wife. However, you can use a premarital agreement to waive this elective share or set a different percentage. Many people who have children from a previous relationship like to use a premarital agreement for this purpose as it preserves their children’s inheritance.

These are the most popular issues a premarital agreement will cover. If the couple entered into the agreement willingly, then a judge will typically enforce it, even if a spouse changes their mind later.

What Can’t You Include in a Premarital Agreement?

A judge will ignore certain provisions:

Child custody arrangements. The judge always uses the “best interest of the child” standard, so that takes precedence over any provision in a premarital agreement.
Waiver of child support. A parent cannot waive the child’s right to support. However, a parent might agree to go above and beyond what the state requires. For example, a father might agree in a premarital agreement to support his children in college.
Provisions which are “unconscionable.” This is a high standard—much higher than a premarital agreement being unfair. Essentially, no reasonable person would sign an unconscionable agreement.

Also, circumstances might change since you signed a prenup. As an example, one spouse could become completely disabled during the marriage. A judge might not enforce a prenup that would deny the disabled spouse of any support after divorce.

How to Create a Valid Prenuptial Agreement

As with all contracts, you want to be careful and deliberate in how you create a premarital agreement. In addition to refusing to enforce unconscionable provisions, a judge will not enforce a premarital agreement procured by fraud or coercion.

We recommend:

Each person should hire their own lawyer. It’s critical not to share a lawyer, since a judge might conclude a person did not receive independent legal advice. Also, each person should pick their own lawyer
Don’t spring the prenup on your fiancé. There is no obligation to give your fiancé months to review and negotiate a premarital agreement. However, you protect yourself if you provide your partner with a reasonable amount of time to review. The goal is to reduce the odds that a judge finds coercion.
Make a full and accurate disclosure of your financial condition. Don’t hide assets or lie to your fiancé that you have less wealth than you really do. Misrepresentations can come back to haunt you. A judge might refuse to enforce a premarital agreement if you didn’t fully disclose your finances.
Don’t include unenforceable provisions. In theory, a judge could simply ignore or redline any unlawful provision and enforce the remainder. But a judge might find the entire document dubious if you include too many unenforceable provisions.
Negotiate. You can strengthen the validity of a prenup in a judge’s eyes if you actually negotiated with your soon-to-be spouse. For example, your future wife might insist on getting more alimony than what you initially proposed. This type of give-and-take burnishes the prenuptial agreement in the eyes of judges, who are less likely to find it lopsided or unconscionable.

Challenging a Premarital Agreement

We see legal challenges to prenuptial agreements in divorce court or in probate. Typically, a spouse challenges the legality of the premarital agreement because they think they can get more assets if a judge declares the agreement unenforceable.

Typically, the spouse challenging the agreement claims it is unconscionable or was procured through duress or fraud. These are hard arguments to prove. South Carolina courts have upheld premarital agreements even if a person testifies they didn’t read the agreement or had only days to review it.

A stronger argument is a misrepresentation, especially when a spouse hides assets. Our firm can help a disappointed spouse analyze whether they have grounds to challenge a premarital agreement. If a judge sets it aside, you can usually get much more in a divorce or because of your spouse’s death.

Speak with an Aiken, South Carolina Family Law Attorney

Surasky Law Firm is happy to help anyone contemplating a premarital agreement. We can draft an agreement or review a proposal created by your fiancé’s lawyer. Call us today to schedule a free consultation. Nobody should sign an agreement without first figuring out if it’s in their best interest to do so. Contact us today if you’d like to set up a private meeting at our offices.