Prenuptial Agreements: What Can (and Can’t) Be Included

Prenuptial agreements can be a touchy topic for engaged couples. The reality is that most prenuptial agreements address (among other things) how the couple would deal with certain issues in the event of a divorce. So when the person you are planning to marry brings up getting a prenup, it’s common to wonder, “Are they thinking about divorce before we even get married?”

That’s a natural reaction. But it’s not necessarily the correct or the most helpful one. A better way to think about it is this: you’re about to hop in a car for a long road trip on a road neither of you has traveled before. Imagine the chaos that would ensue if you each were working from different road maps—or worse, if you each had different destinations in mind—and didn’t realize it.

If you were taking a road trip, you would want to be on the same page with your fellow traveler about where you were going and how you were going to get there. You might also want to agree on who was bringing snacks, how often to switch drivers, what music to listen to, and other details that could make the trip more enjoyable and successful.

By the same token, getting on the same page with your partner before your marriage can make your journey through life easier and smoother. Not having a prenuptial agreement doesn’t mean that you automatically agree on everything; it may mean you haven’t identified or confronted fundamental disagreements, or how to resolve them. But as any seasoned traveler will tell you, the time to figure out where you’re going is before you get on the road.

South Carolina Prenuptial Agreement Law

Several states have adopted the Uniform Prenuptial Agreement Act (UPAA), which is intended to make the law of prenuptial agreements similar across states. South Carolina has not adopted UPAA. Its law regarding prenups comes from existing state law and court cases.

In general, prenuptial agreements are used to settle financial issues. These issues might include:

• Determining which assets will be included in marital property subject to division in a divorce;
• Who will pay attorney fees regarding non-child-related issues in a divorce;
• Whether to waive alimony in a divorce (not all states permit this in a prenup, but South Carolina does);
• Protecting one spouse’s interest in a family business;
• Limiting one spouse’s liability for the other’s debt;
• Establishing inheritance rights, including protecting the inheritance of one or both spouses’ children from a previous relationship;
• Allocating responsibility for household bills and debt incurred during the marriage;
• Agreeing to purchase and maintain life insurance for the benefit of the other spouse;
• Establishing a plan for each spouse to contribute to a joint savings account;
• Recognizing and planning to reward one spouse’s contribution in putting the other through professional school;
• Addressing how the parties will make decisions about major purchases.

The prenuptial agreement can also specify that the parties understand that either of them may experience changes to their health, employment, or other circumstances, and that those changes will not change the terms of the agreement.

Prenuptial agreements need not be limited exclusively to financial issues, but it is usually best if they do not stray too far from that focus. The point of having a prenuptial agreement, aside from simply reaching agreement on important issues, is for the court to enforce it in a dispute. A court may hesitate to take seriously an agreement with minor or frivolous provisions. That’s not to say you can’t make such an agreement, but do it separately and put it in your nightstand drawer until you need it. Limit the prenup to issues you would actually bring before a judge.

What Can’t Go In Prenuptial Agreements in South Carolina

Aside from leaving minor or frivolous issues out of a prenup, there are certain provisions courts will not enforce, some of which could render the whole prenup invalid. A valid prenup will not include:

• Agreements about custody or child support in the event of a divorce. Child support is a duty owed to the children by both parents, and the parents cannot bargain it away. Child custody and visitation are determined based on the best interests of the child, not a prior agreement of the parents.
• An agreement to do anything illegal.
• Agreements that are against public policy. For instance, a prenup should not contain provisions encouraging or even incentivizing divorce.

AVOID COMMON PITFALLS

For a family court to enforce a prenuptial agreement, remember the following elements must be met:

• There must be full disclosure of assets and income. This is typically done by having each party complete the South Carolina Family Court Financial Disclosure form. Once completed, it requires the submitting party to sign before a notary public.
• Prior to signing, each party must have independent counsel review the prenuptial agreement with them.
• The agreement should be “fundamentally fair.” Such a standard is considered by the family court at the time the prenuptial agreement was made, as well as at the time of enforcement.
• Finally, to avoid a claim of coercion, the prenuptial agreement should be signed at least 30 days before the wedding. This will help mitigate any claims that a party was pressured to sign the document.

Of course, there is more to creating a prenup that works than knowing what to put in and leave out. A prenuptial agreement should be made voluntarily, after both parties fully disclose their financial situation.

Don’t just hope that financial matters will go smoothly in your marriage; plan for them too. Talk about these issues before tying the knot, whether or not you formalize your understanding in a prenuptial agreement. If you are interested in a prenup, and want to make sure it’s fair and enforceable, it is best to consult with an experienced South Carolina family law attorney. We invite you to contact Brinkley Law Firm to schedule a consultation.