Whether or not a premarital agreement is enforceable in the state of South Carolina depends, by and large, on the circumstances surrounding the signing of the premarital agreement. However, it can also depend on the circumstances surrounding the situation at the end of the marriage, at the time of separation or marital dissolution.
Premarital Agreements When a Marriage is Void
As a starting point, premarital agreements require a minimum of three things in order to be considered valid:
- The premarital agreement must have been reduced to writing;
- The premarital agreement must have been signed by both parties to the marriage;
- The parties must have actually gotten married.
There are circumstances wherein a marriage ceremony, even with a marriage license issued by the government, may not actually legally marry the parties. This can be true for a number of reasons. For example, if the marriage is a sham, the marriage may not be recognized. Sham marriages happen most commonly when the parties marry to evade immigration laws. If the marriage is between parties who did not marry for the sake of marriage, but rather to overcome immigration difficulties, courts may declare the marriage void. Similarly, if one spouse is already married to someone else, even if that spouse believed they were legally divorced, or that wrongfully believed the first spouse was dead, if in fact the spouse is legally married to someone else, the subsequent marriage will be declared void.
When a marriage is determined to be void, obviously, the third requirement for a valid premarital agreement, that the parties actually got married, has not been met. However, courts in South Carolina may choose to enforce portions of the premarital agreement. Such enforcement is limited to “the extent necessary to avoid an inequitable result.” This will be a factual determination made by a court of law.
Premarital Agreements and Spousal Support
Premarital agreements can contain provisions that address the modification of spousal support, or the elimination of spousal support, even though a party may be entitled to the same under a standard application of the laws of South Carolina. Typically, agreements to forgo spousal support, or to accept a reduced amount of spousal support will be upheld by the courts of South Carolina. However, public policy dictates an exception to this general rule. In a situation where a spouse will be forced to rely on some form of public assistance after a separation or marital dissolution without an award for support, the courts may award spousal support in an amount in excess of the amount agreed to in the premarital agreement. Courts will likely limit the award, however, to the amount necessary to avoid eligibility for public assistance. In most circumstances, it will not vacate the limitation altogether.
Situations Where a Premarital Agreement May Be Entirely Unenforceable
There are not many situations wherein a premarital agreement is completely unenforceable, but there are some. These typically involve wrongdoing on behalf of one of the parties to the premarital agreement. When one is disputing the legitimacy of a premarital agreement, that party has the burden of proving the wrongdoing on behalf of the other party.
Unconscionable agreements are, generally speaking, agreements that are overly one sided, oppressive, or contain “unfair surprise.” It can also be defined as manifestly unfair, or inequitable. Courts will review the contents of the agreement to make a determination about whether the agreement is unconscionable. However, to prevail on this ground, the complaining party has to establish three additional sets of facts. First, the party must establish that information regarding property or financial obligations of the offending spouse was withheld from the injured party, and that the failure to disclose was not fair and reasonable under the circumstances. Second, the injured party must establish that they did not expressly agree, or voluntarily waive their right to have such financial obligations or property disclosed to them before signing the premarital agreement. This may be particularly easy to establish, as any such waiver is required to be in writing. Finally, under this argument for not upholding the premarital agreement, the injured party must establish both that they did not have knowledge of the financial obligation or property that was not disclosed and that they could not reasonably have obtained adequate knowledge of the property or financial obligation owned by the offending spouse.
Lack of Voluntariness and Premarital Agreements
If the injured party can establish they signed the agreement but they did not sign it voluntarily, the premarital agreement will not be upheld. Courts have held that an agreement is voluntarily entered into if it is devoid of duress or coercion. This could include overreaching or the exercise of undue influence by the offending party. Whether a signature on a premarital agreement was voluntarily given is a judicial determination. It is very fact specific and each case must be analyzed, with a complete understanding of all relevant facts.
The Need For A Lawyer in the Drafting a Premarital Agreement
A lawyer’s job in drafting a premarital agreement is to represent their client to the best of their abilities and in accordance with the law. This can include advising a client of the need to engage in full disclosure when writing premarital agreements, to avoid a later determination by a court that the premarital agreement isn’t valid. A lawyer is also familiar with common things that can render a person’s signature “involuntary,” and can take steps to remedy the situation. Family law attorneys are also familiar with ongoing case law that shapes the determination of what is, and is not, an unconscionable division of property.
If You Are Getting Married and Wonder If a Premarital Agreement Is Right For You. . .
If you are getting married, a premarital agreement might be a good idea. Alternatively, you may have been approached by your fiancé about signing a premarital agreement. Contact the attorneys at the Elliott Frazier Law Firm, LLC to discuss your premarital agreement needs.
If You Are Separating Or Seeking Marital Dissolution and Have a Premarital Agreement
If you have a premarital agreement, don’t assume it is binding. There are several situations in which all or part of a premarital agreement may be attacked. To protect your rights, you need a determined family law attorney who understands South Carolina law. Contact the attorneys at the Elliott Frazier Law Firm, LLC today.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.