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Are Prenuptial Agreements Enforceable in SC?

Are Prenuptial Agreements Enforceable in SC?
Axelrod & Associates, P.A.

Are prenuptial agreements enforceable in South Carolina?

Prenuptial agreements are valid and enforceable in all states now, although different states may have various rules about how prenuptial agreements operate.

The general rule in South Carolina is that the parties are free to negotiate and enter contracts, and, unless the agreement is fraudulent or unconscionable, a prenuptial agreement is probably going to be enforced by South Carolina courts.

In this article, we will discuss the enforceability of prenuptial agreements in SC, including:

  • What is a prenuptial agreement,
  • The Uniform Premarital Agreement Act (SC does not have one),
  • Why prenuptial agreements are no longer “against public policy,” and
  • When prenuptial agreements are unenforceable in SC.

What is a Prenuptial Agreement?

A prenuptial agreement, or a “prenup,” is an agreement that you enter into with your future spouse – before marriage – that determines what will happen to each person’s property if there is a divorce.

A prenuptial agreement in South Carolina can control the disposition of assets in a divorce including:

  • 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 prenuptial agreement may include other, non-financial clauses as well, like a “choice of law” provision that specifies South Carolina law will govern any divorce proceedings, regardless of where the divorce is filed.

Prenuptial Agreements, Asset Protection, and Estate Planning

Although most people think of prenuptial agreements in terms of “what will happen if we get a divorce,” they can also be:

  • An effective tool as part of an asset protection plan, or
  • Used as part of an overall estate plan for the couple in conjunction with a will, trusts, and other estate planning documents.

Does South Carolina Have a Uniform Premarital Agreement Act?

SC has not adopted the Uniform Premarital Agreement Act (UPAA), although our legislature has considered and rejected a Bill that would have adopted the Act.

The UPAA follows current SC law for the most part, allowing a premarital agreement to include:

1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of another event;

(4) the modification or elimination of spousal support;

(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(6) the ownership rights in and disposition of the death benefit from a life insurance policy;

(7) the choice of law governing the construction of the agreement; and

(8) another matter, including their personal rights and obligations, not in violation of public policy or law imposing a criminal penalty.

One difference is that the UPAA would allow courts to order spousal support/alimony, even when the parties have agreed there would be no alimony, if the denial of alimony would require a spouse to become eligible for public assistance.

Are Prenuptial Agreements Enforceable in South Carolina?

Prenuptial agreements are enforceable, and limitations on spousal support are not in violation of public policy in SC, although there are some circumstances where the agreement may be unenforceable like fraud, duress, misrepresentation, nondisclosure, or when the agreement is against public policy (an agreement not to pay child support, for example, would probably be against public policy and unenforceable).

Hardee v. Hardee

Hardee v. Hardee, a 2003 SC Supreme Court case, provides a great example of when prenuptial agreements are enforceable in SC and when they are not.

The Court explains why prenuptial agreements are no longer against public policy in SC (or other states) as well as situations where an agreement may not be enforced by the courts.

Are Prenuptial Agreements Against Public Policy in SC?

Prenuptial agreements were considered against public policy until recent times (see, Towles v. Towles).

The Court in Towles held that a contractual waiver of spousal support is void because it is against public policy. The Court found that relieving a husband of his “duty to perform his marital obligations,” including the “duty of the husband to support his wife,” is based on an “outdated and unwarranted view of the sexes which is no longer warranted in today’s society.”

“Gender classifications should not be used as they once were to create or perpetuate the legal, social, and economic inferiority of women,” “the distinction between men and women is based upon old notions that females should be afforded special protection,” and the Court in Hardee overrules Towles “to the extent it relies on outdated notions which are violative of equal protection.”

Prenuptial agreement provisions that govern the payment of alimony or spousal support are not violative of public policy in South Carolina, even if enforcement of the agreement results in one party becoming eligible for public assistance.

When are Prenuptial Agreements Unenforceable?

Prenuptial agreements are unenforceable in South Carolina if:

  • Obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material facts,
  • Unconscionable,
  • The facts and circumstances have changed to the extent that enforcement of the agreement would be unfair and unreasonable,
  • The terms of the agreement are illegal or against public policy (the agreement cannot dictate the terms of child support, for example), or
  • The couple does not get married.

Got Axelrod?

If you are considering marriage, and you want to protect your assets or you have been presented with a prenuptial agreement by your future spouse, talk to your Myrtle Beach prenuptial 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 prenuptial agreement attorney in Myrtle Beach today.

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