What are Prenuptial Agreements?

Under South Carolina law, a couple that is contemplating getting married to one another can secure a legal contract, called a prenuptial agreement, which defines how assets and liabilities are to be divvied up if the marriage is unsuccessful and ends in divorce. A prenuptial agreement can prescribe other terms of the marriage, such as:

• Which spouse will be responsible for managing the marital finances;
• A plan for how the couple will pay for professional school if one of the spouses chooses to further his or her education;
• What jurisdiction (i.e., laws) will be applicable to the divorce and the prenuptial agreement during the divorce, if a divorce were to occur;
• The Structure for any spousal support payments;
• How assets will be distributed in the event that one of the spouses dies during the marriage; and
• Provisions that protect one spouse from assuming any pre-marital debts of the other spouse as a result of their marriage.

Prenuptial agreements are very popular, especially among young professionals and high income earners. The popularity of these legal documents is probably due to the protections that they can provide to the parties entering the marriage. Prenuptial agreements allow a couple to address issues  and produce solutions for problems that might arise in the future, and give the couple the chance to consider the issues and make decisions in advance of the marriage while everyone involved has a cool head about them.

Because a prenuptial agreement is a legally binding contract, basic contract law requirements must be satisfied in order for the agreement to be valid and enforceable. First, the document has to be made in writing and signed by both parties to the marriage in order to be considered enforceable. Second, to be considered a valid contract, the prenuptial agreement cannot be obtained by misrepresentation, fraud, mistake or while one of the parties to the agreement was under duress. The prenuptial agreement also cannot be unconscionable in its terms, meaning that the terms are not fair or reasonable, either at the time that the prenuptial agreement is made or in light of the facts or circumstances at the time of the divorce.

Under South Carolina law, the prenuptial agreement cannot include provisions designed to incentivize or encourage one of the spouses to seek a divorce. The agreement may also not offer financial benefit in the event of a divorce. Routine chores and the management of non-financial matters, such as child-rearing responsibilities, housekeeping tasks, etc. may not be included in a prenuptial agreement, nor may it include any terms related to child custody arrangements, visitation plans or child support in the event of a divorce. Terms such as these render a prenuptial agreement unenforceable in South Carolina.

In Need of a Charleston Family Law Attorney?

If you are considering getting a prenuptial agreement in advance of your marriage, you should contact the experienced Charleston family lawyers at Sarji Law Firm, LLC today. Our team of family lawyers have handled numerous prenuptial agreements and will counsel you through the process and various provisions that you might want to consider including in your prenuptials. Please get in touch with us by calling 843-323-4341.

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