family law lawyer

Avoiding problems with Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements are valid and favored in South Carolina. Proper preparation will ensure that both people are treated fairly should a divorce arise in the future.

The South Carolina courts have long favored the rights of people to contractually agree, either before (prenuptial agreement) or after (postnuptial agreement) a marriage, to alter claims to marital property and alimony that would normally be applied to them under South Carolina law. People can contractually agree to give up claims to some or all property acquired during the marriage and limit or eliminate claims for alimony and spousal support should they desire to do so.

In order for a pre or post nuptial agreement to be valid, our courts have required the following:

(1) The agreement must not have been obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts:

Both parties must prepare and attach to their agreement a sworn financial statement. Next, both parties should be represented by an attorney who has thoroughly reviewed the agreement with them and certified on the document that they have done so. Without financial disclosure and legal representation, it will be very difficult to disprove a claim of fraud, duress, mistake, etc.

(2) The agreement is not unconscionable:

“Unconscionability” is the absence of meaningful choice on the part of one party due to one-sided contract provisions together with terms that are so oppressive that no reasonable person would make them and no fair and honest person would accept them. Marriage is a voluntarily act and any person has the choice to be married or not.  If they do not like the proposed terms of a prenuptial agreement, they do not have to sign it (nor can they be forced to sign a postnuptial agreement after the marriage). Additionally there are distinct benefits to marriage that can work against a claim that the contract was unconscionable, such as a heightened standard of living, driving nice cars, etc.

(3) The facts and circumstances have not changed since the agreement was executed, so as to make its enforcement unfair and unreasonable:

Each party will generally acknowledging their fitness at the time the document is executed. Any special health (mental and emotional) should be set forth in the document. In Hardee v Hardee, Wife was very ill and incapable of supporting herself without alimony. In spite of this, the court refused to break the prenuptial agreement because wife’s health at the time of divorce had not changed from the time she signed the prenuptial agreement and the court found it would be unfair to husband to change the terms of their prior agreement.

Careful drafting and attention to detail will often ensure that contracts are upheld when challenged, and Pre and Post Nuptial agreements are no different.

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