South Carolina Prenuptial Agreement
Because of high divorce rates, couples sometimes attempt to protect their assets by signing a prenuptial or premarital agreement before their wedding. South Carolina courts do honor prenuptial agreements, as long as the provisions are in accordance with the Uniform Premarital Agreement Act.
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Definition
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A prenuptial agreement is a contract signed by a man and a woman in consideration of an upcoming marriage. South Carolina courts will enforce a prenuptial agreement once a marriage has been consummated. Prenuptial agreements can define how a couple's marital and separate property is to be divided in case of a divorce.
Purpose
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Prenuptial agreements were formerly used by couples who had significant assets. Now, however, many couples, regardless of wealth, choose to create and sign prenuptial agreements. First, because so many marriages fail, practical people may choose to be prepared for a possible divorce by deciding who will be entitled to which assets. Second, where one spouse has been married before and there are children involved, a prenuptial agreement would allow that spouse to still provide an inheritance to those children without interference from the new spouse. Child support and alimony payments to a previous spouse would also be easier to handle with a prenuptial agreement. Also, if one spouse is involved in a family business, a prenuptial agreement defining ownership and the other spouse's possible rights to ownership would simplify any division of the business upon divorce, if necessary.
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Uniform Premarital Agreement Act
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The Uniform Premarital Agreement Act was enacted in South Carolina on July 1, 2009. It states that a premarital or prenuptial agreement is only enforceable if it is in writing and both spouses have signed it. The Act permits the parties to predetermine ownership, in contemplation of divorce or death, of their marital and separate property, even where it avoids South Carolina's equitable distribution law.
Invalid Provisions
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Under South Carolina law, there are some provisions that cannot appear in a prenuptial agreement. First, any provisions that are "promotive of divorce" make a prenuptial agreement invalid. This means that if an agreement appears to offer any "financial incentive" to either party if he or she agreed to a divorce, the agreement would not be enforceable by a South Carolina court. Secondly, spouses cannot make any decisions regarding custody and support of existing or future children, because the state considers child welfare a public policy matter that requires state involvement. Lastly, any provisions dealing with nonfinancial matters, including chores, day-to-day activities and raising children, are disallowed.
Unenforceable Prenuptial Agreements
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In addition to invalid provisions, there are other circumstances where a court would declare a prenuptial agreement unenforceable. They include: an agreement that was not voluntary, an agreement where one party did not fully disclose his or her assets and an agreement so "unconscionable" (morally unacceptable and shocking) that a court declares it invalid as a matter of law.
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