What Is a South Carolina Postnuptial Agreement?
A South Carolina postnuptial agreement lays out matters that can come up during a divorce or after one spouse dies. It can sort out who will receive certain assets and or become responsible for debts.
According to SC Code § 20-3-630, property distribution in South Carolina follows an equitable distribution policy. This means that each spouse takes a fair amount of the property from the marriage if they divorce. A postnup can override this standard and provide a separate breakdown.
Couples enter into a postnup after their marriage. If you want to create a contract before your marriage, you can use a prenuptial agreement.
How to Write a Postnuptial Agreement in South Carolina
Writing an enforceable South Carolina postnup can give you and your spouse peace of mind. Follow these steps to ensure you have the necessary information:
- Identifying information: Provide the parties’ contact information. Also, specify the date of the marriage and where it occurred.
- Financial disclosure: Lay out all property owned by both parties entering the contract. Under SC Code § 20-3-630, both parties need to disclose all financial information.
- Business ownership: Provide details about businesses owned by either or both spouses. State who will take them over in the event of a divorce.
- Debts: List any debts or relevant tax information. Consider what tax burdens either spouse might assume.
- Housing: Determine housing arrangements in the event of a divorce. Specify which spouse will keep the marital home. If you plan to sell it, outline how you will split the proceeds.
- Pets: List any pets you have when you enter the marriage and who will takecustody if the marriage ends.
- Spousal support: Establish terms for spousal support in the event of a divorce. Under SC Code § 20-3-130, a judge can award fair alimony based on conditions at the time of divorce. A postnup can override those standards, including allowing a spouse to waive alimony.
- Signatures: Finalize the postnup with your signatures. South Carolina does not require notarization. However, having the document notarized can help establish its validity.
Sample South Carolina Postnuptial Agreement
Below, you can view a free South Carolina postnuptial agreement. When you’re ready, create your own using our template. Download the final version as a PDF or Word document.
Legal Requirements and Considerations for South Carolina Postnups
Unlike most states, South Carolina has not adopted the Uniform Premarital Agreement Act (UPAA). Instead, it relies on case law and its own statutes to enforce prenups and postnups.
Signing Requirements
While South Carolina does not lay out signing requirements, both parties should sign the postnup. In addition, consider having the document notarized to add an extra level of security. The document must be in writing, however, to be enforceable.
Legal Representation
You do not have to have a lawyer to file a postnup in South Carolina. However, a family law attorney can go over the terms of the agreement to make sure that it fairly represents your interests.
Excluded Terms
You cannot use a postnuptial agreement in South Carolina to dictate the terms of child custody or support. In the event of a divorce, the court will set child support and determine custody and visitation based on the best interests of the child, not on any terms the parents may have discussed earlier in the marriage.
Marital Property
The definition of marital property can prove complex. Generally, any property acquired during the marriage counts as marital property. Any property that either spouse owned before the marriage counts as personal property and may not require division in the event of a divorce.
McMillan v. McMillan (2016) offers insight into what can happen when spouses have not previously determined how they will handle asset division. In this case, the court initially ruled that the husband’s businesses were marital property and that the wife had to be compensated for her marital share. This occurred because the wife convinced the court that these were marital assets.
On appeal, however, the husband showed that, though his wife worked for the business he owned prior to their marriage throughout their marriage, she received fair compensation for her labor. In addition, he showed that, under SC Code § 20-3-630, he retained ownership of the businesses begun during the marriage because he used non-marital funds to start them, ultimately resulting in the wife receiving no division of these assets.
A postnup can help avoid many of the challenges faced in this case by clearly laying out marital and non-marital property ahead of time.
