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 postnuptial 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 prenup in the presence of a notary public or witnesses.
- Dividing Property: Equitable division (§ 20-3-630).
Understanding Postnuptial Agreements in South Carolina
§ 20-5-10 – Powers of a wife as to property and contracts generally
- 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.
- 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).
§ 20-5-50 – Requisites of marriage contracts, deeds, and settlements
- A postnup should describe, specify, and particularize the personal and real estate the parties intend to include, convey, and pass directly in the document. Alternatively, a postnup should contain an appendix with a detailed list.
- If the parties use an annexed list, they must sign and deliver it at the same time as the main contract and have it witnessed by the same person.
- The parties must officially record the main document and the attached list; otherwise, creditors and genuine buyers or lenders will consider the postnup fraudulent and invalid.
Case Law
South Carolina has some case law for the governance of 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 the postnup highlights their intent to have it be shared marital property.
- Holler v. Holler, 612 S.E.2d 469 (2005): This case sets a precedent that the postnup will only be valid if both parties voluntarily sign it and show their understanding of the involved terms. The agreement should also be fair to both parties and show no favoritism to either.
