You and your fiancé are a few months away from walking down the aisle and committing yourselves to each other for the rest of your lives. You both decide you want to enter into a prenuptial agreement to protect your respective assets in the event of divorce. But before you both say, “I do,” it is important to understand what you need to do to help make sure your agreement is enforced if you and your spouse find yourselves in family court later on. Below are some tips to help preemptively address potential problems with enforcement of your agreement.
Make Sure You and Your Fiancé Have a Full Financial Disclosure: South Carolina law requires that both spouses make an accurate financial disclosure of their assets and debts prior to entering into a prenuptial agreement. In other words, both spouses are entitled to have a full picture of the other spouse’s financial situation prior to signing an agreement. If, after entering into the agreement, you discover your spouse lied on their financial disclosure and had substantially different assets than disclosed, you can try to claim you were deceived by your spouse’s incomplete disclosure as a defense to enforcement of the agreement.
Make Sure the Agreement is not Overly Favorable to One Party: Under South Carolina law, a family law court will not enforce a prenuptial agreement if it finds the agreement to be “unconscionable.” A prenuptial agreement may be considered unconscionable if it so favors one of the parties that no reasonable person (as the non-favored party) would have entered the agreement.
Neither Spouse Should Feel Coerced Into Signing the Agreement: If a court finds one spouse was unduly pressured to enter into the prenuptial agreement, the court will deny enforcement of the agreement against the pressured spouse. Common examples of undue pressure include one spouse threatening to call off a wedding if the other person does not sign the agreement as written. A court will also consider when the spouse was presented with the draft agreement for signature (a week before the wedding versus a few months before) and whether the spouse had an opportunity to hire his or her own counsel.
Hire Independent Counsel. You should hire someone who you are comfortable with and preferably someone who is not close friends with your soon-to-be spouse. Your attorney can help you make sure you are protected and help you negotiate terms in your prenuptial agreement so they are fair and not one-sided. If you cannot afford the costs of a lawyer, consider asking your spouse if they are willing to pay the costs for you.
Do Not Wait Until a Week Before the Wedding. Making sure both you and your spouse have adequate time to review any agreement prior to entering into it will help eliminate the potential defense of duress for both of you later on if the agreement is challenged in court.
Prenuptial Agreements Cannot Preemptively Determine Child Custody: South Carolina family courts reserve the right to determine what is in the child(ren)’s best interests if you and your spouse get divorced. This makes sense as there is no way parents can predict the future as to what is going to be best for the children they may not even have yet.
Prenuptial Agreements Cannot Limit or Waive Child Support: Child support will not be determined until the time of divorce pursuant to South Carolina child support guidelines. A prenuptial agreement may not limit or waive the family court’s ability to set child support at a later date.
Prenuptial Agreements Cannot Require an Illegal Act: A prenuptial agreement cannot involve any provisions that require a spouse to commit illegal actions in the future. Even if both spouses agree to a provision requiring an illegal action, it will not be enforced in family court for public policy reasons.
Examples Through South Carolina Case Law
South Carolina case law helps demonstrate how fact-specific a court’s inquiry is in determining whether a prenuptial agreement should be enforceable. This highlights the importance of hiring a local family law attorney who can take you through factors relevant to enforcement.
Example of an enforceable prenuptial agreement:
In the case of Hudson v. Hudson, the Court of Appeals of South Carolina found a prenuptial agreement was enforceable despite several factors weighing against enforcement:
- The wife-to-be’s lawyer was a close friend of her husband-to-be who completed the services for free.
- The wife-to-be signed the agreement two weeks before the wedding right after she quit her job and claimed she would have signed an unfair agreement because of the “duress” she allegedly felt at the time.
- An expert witness testified the wife-to-be was not able to understand the agreement given the short time frame when she met with her lawyer.
- The wife-to-be claimed she did not read the agreement prior to signing it and testified she had concerns about it prior to signing it that were not addressed.
Example of an unenforceable prenuptial agreement:
The Court of Appeals of South Carolina found a prenuptial agreement was unenforceable and invalid in the case of Holler v. Holler. In determining the prenuptial agreement was invalid, the Court looked at several key factors:
- The Ukrainian wife-to-be had no means of supporting herself and no money to hire an attorney or translator to translate the terms.
- The agreement was signed when the wife-to-be was pregnant and her visa was about to expire.
- Because of a language barrier, the wife-to-be did not understand the contents of the agreement.
- The husband-to-be said the wife-to-be needed to sign the agreement as written if she wanted to get married prior to her visa expiring.
- The parties signed the agreement a mere five days prior to the parties’ wedding and three days before the wife-to-be’s visa expired.
Contact an Experienced Greenville Family Law Attorney!
When negotiating the terms of a prenuptial agreement, you want to make sure you have experienced representation to walk you through your rights and help you understand the terms of an agreement before you sign on the dotted line. The dedicated Greenville family law attorneys at Elliott Frazier Law Firm, LLC can help you feel comfortable and take you through the difficult drafting process to make sure you can focus on your wedding day. Contact us today for a consultation to discuss your case.
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.