A South Carolina prenuptial agreement is a legal contract between two engaged partners outlining the management and division of their debts, properties, and assets. This document guides their finances during their marriage and in scenarios like divorce or the death of one partner. This agreement is contingent on establishing a civil union or legal marriage.
Without a prenup, property division falls under the court’s jurisdiction. Writing and signing this document lets couples retain control over their individual assets and ensure their desired distribution of any property they acquire together throughout their marriage.
Legal Considerations
Laws: South Carolina hasn’t adopted the Uniform Premarital Agreement Act (UPAA), although the legislature has considered it before. The state mainly bases its prenuptial agreement laws on case law. For example, one case governing prenuptial agreement laws is Hardee v. Hardee, 348 S.C. 84, 558 S.E.2d 264 (S.C. Ct. App. 2001).
South Carolina Code of Laws Title 20, Chapter 3 contains some guiding principles for prenups.
Signing Requirements: Both partners must write and sign the agreement. While the state doesn’t require a notary acknowledgment or witnesses, they’re highly recommended (Holler v. Holler, 364 S.C. 256 (2005)).
Dividing Property: Equitable division (§ 20-3-610).
Enforceability Requirements
- Lack of Unconscionability: The agreement should be fair for both parties and shouldn’t favor one party over the other.
- Entered into Voluntarily: The agreement should represent all parties’ intentions and clearly disclose all facts. No party should enter into it by mistake or through duress or fraud. Consider signing the agreement at least 30 days before marriage to limit claims of coercion.
- No Mentions of Child Support or Custody: A prenup shouldn’t plan for child support or custody in case of a divorce. Parents owe both of these duties to their children, and they should allow a court to decide what’s in the child’s best interest at the time of divorce.
- No Illegal Provisions: A prenup should only contain legal provisions that don’t go against public policy. For instance, a prenup shouldn’t include statements encouraging the partners’ separation.
