Are Postnuptial Agreements Enforceable in South Carolina?

Postnuptial agreements, like prenups, are enforceable in SC as long as they meet a few basic requirements.

As with other types of marital agreements, SC courts will recognize that people are free to negotiate and enter contracts without government interference – unless an agreement is unconscionable or fraudulent, the courts will most likely enforce it.

In this article, we will discuss the basics of postnuptial agreements, or “postnups,” including:

• What can be included in a postnuptial agreement,
• Why a couple would enter a postnuptial agreement,
• The difference between a prenup and a postnup, and
• How to make sure your postnuptial agreement will be enforceable in court.

What is a Postnuptial Agreement?

When a couple divorces, they must divide all “marital property,” which will be divided either by the parties through negotiations and a separation agreement or settlement agreement or by the court at the final divorce hearing.

The court will divide the couple’s assets using the method of “equitable division” based on factors identified in SC law. In most cases, this will include the parties’ business interests as well as their personal property.

Postnuptial agreements allow the couple to exempt certain properties from consideration as marital property – making them off-limits – in the event of a divorce. In many cases, a couple will accomplish this through a prenuptial agreement. A postnuptial agreement allows the couple to enter into the contract after they are married.

What can be Included in a Postnuptial Agreement?

Like prenups, postnuptial agreements allow the couple to negotiate what will be considered “marital property,” and may include:

• Assets owned by each party before the marriage,
• Assets or money acquired by each party during the marriage,
• Debt that was incurred before the marriage,
• Debt that is incurred during the marriage,
• Who pays attorney fees if there is a divorce,
• The increase in value of premarital assets during the marriage,
• Payment (or not) of alimony/ spousal support,
• “Triggers” – if a certain event happens, the spouse must pay alimony or other terms,
• A “sunset clause” that ends the agreement after a specified period of time, or
• Any financial arrangements agreed to by the parties based on their unique circumstances.

A postnup can also include non-financial terms like a “choice of law” provision specifying that South Carolina law (or another jurisdiction’s law) will govern any divorce proceedings regardless of where the divorce action is filed.

What Can’t Be Included in Postnuptial Agreements?

Any agreement that is illegal or against public policy will not be enforceable.

One example is child support. Although the parties can agree to pay or not pay child support or agree as to the amount paid, the family court will always review the terms of the agreement and order child support based on what is in the child’s best interest based on the statutory factors.

Why Do Couples Enter into Postnuptial Agreements?

What’s the purpose of a postnuptial agreement? If a couple loves each other and they know they will be together forever, why would they even consider an agreement that divides their property in the event of divorce?

Approximately one-half of first marriages end in divorce, and the statistic for divorce in subsequent marriages is even higher than one-half. Prenups and postnups are simply a recognition of the fact that more than one-half of all couples, most of whom believed they would be together until death do us part, end up divorcing.

There are many reasons why a couple may decide to enter into a postnuptial agreement. Some examples include:

• To modify an existing prenuptial agreement,
• A significant change in the couple’s finances like a monetary windfall, a debilitating injury or illness, a new career, or the start of a new business venture, or
• As a condition of reconciling after infidelity or other marital troubles.

What’s the Difference Between a Prenup and a Postnup?

Both agreements can contain the same terms, and both are usually enforceable. The only difference between a prenup and a postnup is that the prenup is executed before marriage and the postnup is executed after marriage.

When are Postnuptial Agreements Enforceable?

Postnups are enforceable unless:

• The agreement was obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of material facts (if one spouse did not disclose the full extent of their assets, for example),
• The agreement is unconscionable,
• The facts and circumstances have changed to the extent that enforcement of the agreement would be unfair and unreasonable, or
• The terms of the agreement are illegal or against public policy (the agreement cannot dictate the terms of child support, for example).

Got Axelrod?

If you and your spouse want to renegotiate your prenuptial agreement, if you believe a postnuptial agreement is right for you and your spouse, or if you have been presented with a postnuptial agreement by your future spouse, talk to your Myrtle Beach postnuptial attorney on the Axelrod team as soon as possible.

Call now at 843-353-3449 or fill out our contact form to speak with a SC postnuptial agreement attorney in Myrtle Beach today.