A South Carolina postnuptial agreement is a legal document that allows married individuals to determine how they’ll distribute their property if their marriage ends due to the passing of one spouse or the pair’s divorce. This contract lets the couple avoid the state’s default property division laws and create terms that work for their unique situation.
Couples sign a postnup agreement after they’re already married, which can be helpful because their financial situations may change since they originally married. This stipulation makes it different from a prenup, which individuals sign before they enter marriage. Even though state law permits postnups, you may consider hiring a local, experienced attorney for assistance with drafting yours.
Legal Considerations
Title 20 of the South Carolina Code of Laws governs family and marriage matters, including postnups. Courts also refer to case law when determining the validity of these documents.
- Signing Requirements: The state doesn’t have clear guidelines for signing requirements, but it’s highly recommended that both parties sign the postnup in the presence of a notary public or witnesses.
- Dividing Property: Equitable division (§ 20-3-630).
Asset and Property Rights
Property Ownership
- During the marriage, a spouse shall acquire a vested special equity and ownership right in the marital property as defined in § 20-3-630. [1]
Wife’s Separate Property
- A married woman can convey, devise, or bequeath her separate property as if she were unmarried and, dying intestate, her property shall descend in the same manner as the law states for the descent of the property of husbands. [2]
- All legal instruments shall be executed by her in the same manner and have the same legitimacy and effect as if she were unmarried. [2]
Capacity to Contract
- A married woman can buy any property in her own name, accept legal property transfers, and bind herself by contract as if she were unmarried. [3]
- All these contracts should be legal and obligatory and may be enforceable at law or in equity by or against the married woman in her own name (separate from her husband). [3]
Business and Earnings
- A married woman’s income and earnings shall remain her own separate estate. [4]
Marriage and Divorce
Separation Agreement
- A husband and wife can write a separation agreement, but the court has the right to modify the agreement whether or not it’s filed with the court, so long as the agreement does not deny the court’s jurisdiction. [5]
Spousal Support
- In the event of a divorce, either party can request temporary financial support (alimony and suit money) while the divorce proceedings are ongoing. [6]
- The court may grant alimony in such amounts and for terms the court considers appropriate. The court may not give alimony to a spouse who commits adultery before entering a permanent order of separate maintenance and support or signing a marital settlement agreement. [7]
Estate Planning and Inheritance
Inheritance Rights
- If a spouse dies without a will, the surviving spouse will get the entire intestate if the deceased spouse has no descendants. However, if the deceased spouse had descendants, the surviving spouse will get half of the estate. [8]
South Carolina Case Law
Explore an example of South Carolina case law involving postnups:
- McMillan v. McMillan, 790 S.E.2d 216 (2016): This case emphasizes that property either spouse acquired before marriage will remain their property in a divorce unless there is intent to have it be shared marital property.
