A premarital agreement is a contract entered into by two parties. The purpose of a premarital agreement is “an agreement between prospective spouses.” The agreement is made with an eye towards the life of the prospective spouses as a married couple. Premarital agreements, while binding contracts, are only effective upon a legal marriage ceremony taking place.
Assuming the premarital agreement meets certain legal requirements, the state of South Carolina will consider the premarital agreement a contract that is legally binding. If you have a premarital agreement that complies with the requirements, the courts in South Carolina will use the premarital agreement in settling questions during a divorce or separation of a married couple.
What is Required for a Premarital Agreement to be Valid?
As a preliminary matter, premarital agreements are not valid until after the couple is actually married. Further, in South Carolina, a premarital agreement must be in writing. Finally, the premarital agreement must be signed by both the prospective husband and the prospective wife.
Recall, a premarital agreement is a legally binding contract. As such, the basic rules of contract law apply. People who lack the capacity to enter into contracts, such as children, or those under civil commitment proceedings, may not be able to enter into a valid premarital agreement.
There are a series of situations that can render a premarital agreement moot. These will be discussed in more detail in a separate post.
What Sorts of Things Might a Premarital Agreement Cover?
Premarital agreements are designed to determine the equitable division of property between married individuals should their marriage end in separation or divorce. “Property” includes all forms of property and any interest one may have in property. This can include pension accounts, retirement accounts, employee benefit plans, income from rental property, earnings from employment, stocks, and income from stocks, trust funds, real property, such as a timeshare, and personal property, such as furniture, cars, boats, etc.
Premarital agreements are not limited to an allocation of property the couple has at the beginning of the marriage. It can also cover property accumulated during the course of the marriage.
In general, there are eight different categories of things that are typically covered by premarital agreements, as detailed below:
- The right to control property. This includes the right to manage property, dispose of the property, encumber the property, mortgage the property, create a security interest in property, assign property, expend property, consume property, lease property, abandon property, exchange property, transfer property, use the property, sell the property, or buy a given property;
- The elimination of spousal support or the modification of spousal support;
- The ownership of death benefits from a given insurance policy, as well as the disposition of death benefits from a life insurance policy;
- The choice of law which will govern the agreement, should a dispute arise out of the premarital agreement;
- Property rights and obligations as assigned to each party regarding any property they own solely or jointly with their spouse;
- How all property covered in the premarital agreement is disposed of if the marriage ends in separation, divorce, or death. This section also allows the parties to address the disposal of property should a given event occur or not occur, as contemplated by the parties;
- The creation of wills, trusts, or the creation of another method to accomplish the provisions of the premarital agreement;
- If the parties desire to include agreements on other issues regarding personal obligations or rights, this is also permissible.
Are There Things That Cannot Be Included In a Premarital Agreement?
Yes. Child support is governed by South Carolina statute. As such, any mention of child support that reduces an obligation to less than what would be ordered by a court of law, consistent with South Carolina statute, is not permissible in a premarital agreement.
Premarital agreements also cannot require conduct (or the lack of conduct), where such conduct would be a criminal act. For example, a premarital agreement cannot have a provision indicating that one party would remain silent about the other party’s deliberate misrepresentations on the joint tax returns.
Finally, agreements that are in violation of South Carolina’s public policies also have no place in a premarital agreement. If they do exist in a premarital agreement, they will not be upheld as enforceable by a court of law.
Once a Premarital Agreement is Signed, and the Parties Have Married, Can It Be Changed?
Premarital agreements can, indeed, be changed after the marriage takes place. This could occur due to any number of changes in circumstances that were not originally contemplated by the parties. If a married couple decides to modify or revoke the premarital agreement, the same requirements exist as did for the original premarital agreement. First, the changes, or the determination that the premarital agreement should be revoked in its entirety, must be detailed in writing. Next, both parties are required to sign the document.
Before you revoke or amend your premarital agreement, it is a good idea for each party to consult an experienced family law attorney to review the changes as proposed. Lawyers are duty bound to advocate on your behalf. If the amendments are not favorable to you, your lawyer will be able to identify these problems. Your lawyer can seek to negotiate amendments with your spouse’s lawyer, to ensure a fair and agreeable resolution to the proposed modifications.
What Should I Do if I am Planning to Get Married?
The Greenville, South Carolina attorneys at Elliott Frazier Law Firm, LLC are ready to meet with you to discuss whether a premarital agreement is in your best interests. If your fiancé has presented you with a premarital agreement, the attorneys at Elliott Frazier are capable of reviewing the documents, and advising you about what may be in your best interests. Contact us to discuss your situation.
What Should I Do if I Have a Premarital Agreement That My Spouse or I Want To Modify
If you already have a premarital agreement, and you want to modify it, or you or your spouse would like to revoke the premarital agreement, contact the skilled family law attorneys in Greenville, SC at the Elliott Frazier Law Firm, LLC to discuss what is best for your particular situation. Contact us today.