As Charleston divorce attorneys, we know the value of a prenuptial agreement for our clients. In this article, we will explain what a prenuptial is, whether South Carolina courts enforce these agreements, the right ways to prepare a prenuptial agreement, and what to do if your spouse-to-be asks you to sign a prenuptial agreement.
What is a Prenuptial Agreement in South Carolina?
A prenuptial agreement, otherwise known as an “ante-nuptial” agreement, is essentially a contract made between a couple before their marriage that spells out the parties’ intentions should they ever divorce. A prenup typically covers the division of assets and debts and spousal support (alimony). Because a prenup largely governs financial matters, some persons believe that a prenup is only necessary for the wealthy. This view is shortsighted for several reasons. For example, a young couple getting a start on their life may not have many assets to begin with, but over the course of many years of hard work and savings, they may accumulate property, savings, retirement accounts, and so on. Unfortunately, the reverse may also be true, and they might accumulate significant debts. As another example, one spouse may decide to remain home and raise children while the other spouse builds on their career and ultimately earns a substantial living. Regardless of the parties’ situation, a well-crafted prenup plans for these possible futures without the substantial costs (both financial and emotional) of a contested divorce and the inevitable uncertainty of putting their future into the hands of their lawyers and a judge.
What Do South Carolina’s Family Courts Consider to Enforce a Prenuptial Agreement?
In Hudson case, the Supreme Court re-stated the test it uses when reviewing prenuptial agreements:
- Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable? (“unconscionable” basically means that the agreement is so one-sided that no reasonable person would sign it)
- Have the facts and circumstances changed since the agreement was executed, so as to make it enforcement unfair and unreasonable?
We found certain facts about Hudson to be very important. First, the wife was represented by a lawyer who was referred to her by the husband, who was a close friend of the husband, and who didn’t charge for his services. Second, the wife testified that she didn’t read the agreement before she signed it and that she had concerns about it. Third, the wife signed the agreement two weeks before the wedding and she sold her car and quit her job. In fact, she testified that she would have signed the agreement whether it was fair or not due to “duress.” Finally, an expert witness who examined the wife testified that she would have been devastated to walk away from the wedding when the agreement was presented to her and that she wasn’t capable of understanding the agreement in the short amount of time she met with her lawyer.
Despite these facts in the wife’s favor (there were some facts against her as well), the Supreme Court held that the agreement was not unconscionable and was fully enforceable. However, it should be noted that the Supreme Court’s opinion came out for a reason – prenuptial agreements aren’t enforceable in every case.
What is the Right Way to Prepare a Prenuptial Agreement in South Carolina?
For a prenuptial to be enforceable, there needs to be adequate financial disclosure to the other party. Don’t hide assets. Doing so could allow your spouse to argue that he or she was not fully informed at the time of the agreement.
Let your spouse-to-be pick a lawyer of his or her choice. You can offer to pay the lawyer’s bill, but you shouldn’t push your fiancé in one direction or another and shouldn’t exert any influence over the consultation with that lawyer.
Hire your own lawyer. Prenuptial agreements are contracts. The details are of utmost importance. With so much at stake, don’t let yourself be your test case. Hire a lawyer experienced with family law to draft the agreement.
Don’t wait until the last minute. The earlier you give the agreement to your fiancé, the more likely everyone will be comfortable and not rush to a decision that could open the door for a later argument that the spouse was under duress. Just because the Hudson case went the way it did, it doesn’t mean that “two weeks” is sufficient in every case. Plus, it lets your fiancé know that you are trying to be fair.
What to Do if Your Spouse is Asking You to Sign a Prenuptial Agreement?
Don’t get coerced to sign something you don’t understand. The Hudson case is a prime example of that.
Hire a lawyer that you’re comfortable with. You will probably have an uneasy feeling if you go with someone who your fiancé recommends or knows.
If you can’t afford a lawyer, or if the cost is a burden, consider asking your spouse-to-be to pay for your lawyer to review the agreement. If this person is sincere about the vows he or she is about to make, and this person has a lot more than you financially, this isn’t an unfair request.
Don’t sign anything or make any decisions until after YOUR lawyer has reviewed the agreement and your fiancé’s financial disclosure and advised you privately about their consequences. Your fiancé is protecting him or herself, so you should make sure you are protected as well. In many cases, the prenup isn’t a “take it or leave it.” Perhaps, your attorney can negotiate terms to make sure you aren’t left high and dry in the event of divorce.
Don’t be offended if your fiancé asks you to sign one. There are many reasons for prenuptial agreements. They don’t necessarily imply that the marriage is going to fail.
Attorneys in Charleston for Prenuptial Agreements
Don’t wait until possible divorce to seek legal advice about your marriage. It is best to know where you stand before you tie the knot. If you are getting married, want a prenup, or had a prenup presented to you, schedule a consultation with one of the family law attorneys at Futeral & Nelson.