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The Importance of Pre-Nuptial Agreements in SC

Marriage is a happy event for most couples. However, it can change the dynamics of a relationship. It can also change how a couple approaches certain legal situations. Married couples often choose to file their taxes jointly and may share retirement benefits. Some property acquired during a marriage may be considered “marital property” in the event of a divorce. Pre-nuptial agreements give engaged couples the opportunity to protect their assets and their property so their spouse does not acquire them should the marriage end in divorce.

What Is a Pre-Nup?

Pre-nuptial agreements are legally binding contracts that engaged couples can enter before marriage. Also known as antenuptial agreements, these contracts can divide assets, property, and debts during a marriage and if the marriage ends in divorce. These agreements only begin to be enforced once a marriage has taken place.

Who Benefits from Pre-Nuptial Agreements?

All couples can benefit from creating a pre-nup that covers their specific needs and is legally sound. Some people believe that this type of contract is only beneficial for people who are wealthy. However, couples at any income level can benefit because the nature of a pre-nup is to protect assets. A person with a lower income may lose a significant portion of their assets in a messy divorce, and a pre-nup can prevent that from happening.

Couples who enter a marriage without a pre-nuptial agreement will have their property divided according to South Carolina state law. A pre-nup allows them to bypass the courts and divide their property as they see fit. Anyone who has assets that are important to them, such as an inheritance for their children, should seek a pre-nuptial agreement.

What Do Pre-Nuptial Agreements Cover?

No two pre-nuptial agreements are built the same way. Although all of them are different, the majority of them will focus on issues that would be decided by a judge during a divorce otherwise. Some specific areas that pre-nuptial agreements can focus on include:

  • Separating personal property from marital property: A pre-nup allows engaged couples to decide how their assets will be divided in the event of a divorce. Their property would be split by a judge otherwise.
  • Providing for children: Engaged couples who have children from previous relationships can ensure their children will be able to inherit property or assets they wish to leave them by including it as a provision in their pre-nup.
  • Protecting heirloom property: A person can specify in their pre-nuptial agreement that they would like certain family heirlooms, including businesses, to stay within the family.
  • Separating debt: Pre-nuptial agreements allow engaged couples to enter a marriage without burdening their new spouse with their previous debts. In the event of a divorce, a person can inherit debt from their former spouse without such an agreement in place.
  • Defining spousal responsibilities: A pre-nup lets engaged couples determine their individual financial responsibilities once the marriage begins. This prevents one spouse from becoming burdened by more financial responsibility than they can handle. The agreement can also outline whether one spouse would provide financial assistance to the other in the event of a divorce.
  • Estate planning: A pre-nuptial agreement in South Carolina can include estate planning elements relevant to carrying out the provisions of the agreement. This includes ensuring the proper legal team is in place, that powers of attorney have been selected, etc.
  • Life insurance payouts: Anyone with a life insurance policy can ensure the death benefit is paid to the right person by including it as a provision in their pre-nuptial agreement.

Things That Can’t Be Included in a Pre-Nup

Although pre-nuptial agreements can be broad in scope, there are some provisions that cannot be included in one. Some specific examples of provisions that can’t be included in a pre-nup are:

  • Illegal activity: A pre-nup will not hold up in court if any of the provisions are illegal. This includes requiring that one or both spouses commit any sort of crime.
  • Child custody or child support: Child support and child custody issues cannot be handled through a pre-nuptial agreement. These are issues that require involvement from the courts to ensure that the child’s best interests are considered. Child support and child custody issues are of public policy.
  • Unfair terms: A pre-nuptial agreement cannot include terms that are overly one-sided and favor one spouse. For example, an agreement that states that everything from both parties will be left to one spouse after a divorce will not be enforceable.
  • Personal matters: A pre-nuptial agreement will not be enforceable if it includes provisions relating to certain personal matters. An agreement cannot require a spouse to look a certain way or act a certain way. They also cannot require sexual relations.

What Could Make a Pre-Nuptial Agreement Invalid?

A pre-nup can be invalidated by the courts if it is not prepared properly. This means that none of the outlined terms will be enforceable, and the agreement will need to be redrafted. Creating a pre-nuptial agreement with an experienced family lawyer can help prevent it from becoming invalidated. A pre-nuptial agreement is likely to be invalid if it includes any of the following:

  • Incomplete disclosures: Each spouse has to disclose all of their assets when creating a pre-nuptial agreement. If either spouse fails to disclose their total assets or claims fraudulent assets, their agreement will become unenforceable.
  • Duress: If the courts learn that a pre-nuptial agreement was signed while either spouse was under duress, they will not be able to enforce it. Duress means forcing or coercing one spouse to sign the agreement. Any sign that one spouse has taken advantage of the other through the pre-nuptial agreement will invalidate it.
  • Promoting divorce: A pre-nuptial agreement cannot include provisions that are ultimatums for divorce. For example, if a provision states “I can divorce you if you don’t do the dishes,” it cannot be enforced.
  • Failure to meet legal requirements: All pre-nups must be signed by both spouses and notarized to be considered legitimate and legally enforceable.

If you are being asked to sign a prenup by your fiancé, consider the following:

  • Only sign the document if you are certain you understand its terms. Do not sign it under pressure or because you feel forced.
  • Contact an experienced family lawyer. It is wise to create and sign a pre-nuptial agreement with a neutral lawyer neither party has prior experience with.
  • Allow the lawyer to review the entire agreement and ensure that it has been created in good faith.

Our Firm Can Help

If you are engaged and are considering a pre-nuptial agreement in South Carolina, reach out to Masella Law Firm, P.A. today. We are ready to meet with you and your spouse to help draft a pre-nuptial agreement that will protect both of your interests and hold up in court. With nearly 30 years of experiencing advocating for clients in South Carolina, we put our clients first in every situation. Contact us today at (803) 938-4952 or online.