The all-inclusiveSouth Carolina prenup

The controlling statute & cases

What law governs prenups in South Carolina?

South Carolina prenuptial agreements are governed almost entirely by case law rather than a dedicated statute. The leading authority is Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003), along with the earlier decision in Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (Ct. App. 1989), both of which set out the standard South Carolina courts use to decide whether a prenuptial agreement should be enforced.

There is also a bill currently pending in the South Carolina General Assembly as of 2026 that would add a new Section 20-1-110 to the S.C. Code (House Bill 4800). It has not been enacted, and it is not the law in South Carolina today, but it is worth understanding because of what it would change and because couples drafting an agreement right now can choose to follow its standards voluntarily, even before it takes effect.

Is South Carolina a UPAA state?

No, South Carolina has not adopted the Uniform Premarital Agreement Act. South Carolina’s approach to prenuptial agreements has developed through appellate decisions like Hardee v. Hardee and Prevatte v. Prevatte rather than through a comprehensive statute, which means the state doesn’t have a UPAA-style formation and enforcement checklist the way many other states do. The pending bill described above wouldn’t change that either. It would create a unique prenuptial agreement statute that is not necessarily modeled after the UPAA.

Requirements for a South Carolina prenup

What are the requirements for a prenup in South Carolina?

Under current South Carolina case law, a prenuptial agreement is enforceable if it was entered into without fraud, duress, or coercion; if each party had full disclosure of, or adequate knowledge about, the other’s financial circumstances; and if the agreement wasn’t unconscionable when it was signed (Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003); Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (Ct. App. 1989)).

Requirements under current law:

• Entered into without fraud, duress, or coercion
• Full disclosure of, or adequate knowledge about, the other party’s financial circumstances
• Not unconscionable at the time of signing
• Separate attorney representation for agreements that waive marital property rights, which creates the statutory presumption of fairness under S.C. Code § 20-3-630(A)(4)
• Written and signed (expected as a practical matter)

That’s the current law. The pending bill would add a meaningfully stricter, optional path to a valid prenup. Under proposed Section 20-1-110, a couple could ask the family court to approve their agreement in advance, but only if:

• both parties signed the agreement along with their respective legal counsel;
• both parties were represented by separate attorneys;
• each party gave the other adequate financial disclosure covering income, assets, debts, and liabilities;
• the prenuptial agreement was provided to both parties at least thirty days before the wedding (or, for a postnuptial agreement, at least thirty days before it was signed);
• both parties were mentally competent and free of duress or coercion; and
• the agreement was fair and equitable to both parties.

None of this is required under South Carolina law today. But because a court-approved agreement under the bill would come with a rebuttable presumption of validity, drafting to these standards now is a reasonable way to future-proof an agreement, and it also happens to track almost exactly what South Carolina courts already look for informally under Hardee, so there’s very little downside to doing it.

Does a prenup need to be notarized in South Carolina?

No, notarization isn’t required under current South Carolina case law for a prenuptial agreement to be enforceable, and it is also not required under the proposed legislation. However, it’s still worth doing as a practical matter, since a notarized signature helps establish who signed the agreement and when, which can matter if the agreement is challenged later.

Do both parties need a lawyer for a prenup in South Carolina?

Yes, South Carolina Code section 20-3-630(A)(4) specifically requires attorney representation for prenuptial agreements that waive marital property rights. The statute states that a prenuptial agreement (also called an “antenuptial agreement” in this statute): “must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel” and includes full financial disclosure. This creates a statutory safe harbor. If both parties have separate attorneys and make full disclosure, the agreement is presumptively valid.

However, this attorney requirement only applies to prenuptial agreements affecting marital property division under the equitable distribution statute. For other types of waivers in marital agreements, South Carolina law does not mandate attorney representation. For example, section 62-2-204 allows waiver of elective share rights (a surviving spouse’s right to claim a portion of the deceased spouse’s estate) through a written agreement that is “voluntarily signed by the waiving party after fair and reasonable disclosures” but contains no attorney requirement.

Proposed Section 20-1-110 would require that both parties be represented by separate legal counsel, not merely just for marital property waivers, as a condition of getting the agreement court-approved and receiving the rebuttable presumption of validity that comes with it. Given how significant that presumption would be in a later dispute, it’s worth having both parties independently represented now, even while the bill remains pending, so the agreement is positioned to qualify if the process becomes available.

What makes a prenup invalid in South Carolina?

Under current law, a South Carolina court can decline to enforce a premarital agreement if it finds the agreement was the product of fraud, duress, or coercion, if one party lacked adequate disclosure or knowledge of the other’s finances, or if the agreement was unconscionable when signed (Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003)). If the pending bill is enacted, a court-approved agreement would carry a rebuttable presumption of validity that a challenger would have to overcome with clear and convincing evidence, a considerably higher bar than applies to an ordinary, non-approved agreement today.

How long before the wedding should I sign a prenup in South Carolina?

South Carolina doesn’t currently impose a statutory waiting period between finishing the agreement and the wedding. The pending bill would introduce one, but only for agreements seeking court approval: proposed Section 20-1-110 would require that the prenuptial agreement be provided to both parties at least thirty days before the marriage. Even without that rule being in force yet, giving both parties 30 days to review the agreement well ahead of the wedding is good practice under existing law too, since a rushed signing supports an argument that the agreement wasn’t entered into voluntarily.

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What can & can’t be in a South Carolina prenup

Does cheating void a prenup in South Carolina?

No, adultery does not automatically void a prenuptial agreement in South Carolina. The state’s courts apply the established three-part Hardee test to determine enforceability, which examines whether the agreement was obtained through fraud, duress, or nondisclosure; whether it’s unconscionable; and whether changed circumstances make enforcement unfair. Adultery by itself is not one of these grounds for invalidating a prenuptial agreement.

However, adultery can have significant consequences for the adulterous spouse’s financial claims. Under South Carolina Code section 20-3-130, a spouse who commits adultery is barred from receiving alimony. This statutory bar operates independently of any prenuptial agreement provisions. So while the prenuptial agreement itself remains valid and enforceable, an adulterous spouse cannot seek alimony regardless of what the agreement says about spousal support. Courts have consistently applied this principle, as seen in cases like RGM v. DEM, where the Supreme Court held that a wife’s adultery barred her from receiving alimony even when she raised other defenses. (RGM v. DEM, 306 S.C. 145, 410 S.E.2d 564 (1991)).

Are infidelity clauses enforceable in South Carolina?

It’s genuinely unsettled, but South Carolina’s statutory treatment of adultery makes this a closer question than in many other states. Because South Carolina already bars an adulterous spouse from alimony by statute and allows marital misconduct to be weighed in property division, an infidelity clause isn’t nearly as clearly against public policy here as it would be in a strict no-fault jurisdiction. That said, the agreement as a whole, including any infidelity-related provision, would still need to satisfy the fraud, disclosure, and unconscionability requirements from Hardee v. Hardee, so a clause imposing an extreme or disproportionate penalty remains vulnerable to challenge.

Can a prenup include child custody in South Carolina?

No. South Carolina custody decisions are governed by the best-interest-of-the-child standard under South Carolina’s Children’s Code, S.C. Code § 63-15-230, and that determination has to be based on the child’s actual circumstances at the time custody is decided. A prenuptial agreement, often signed long before a couple has children, cannot be used to lock in custody terms in advance, since a private contract can’t substitute for the individualized evaluation the statute requires.

Can a prenup protect a business in South Carolina?

Yes. South Carolina courts have long recognized the right of engaged couples to define their property rights by agreement, including business ownership interests. A South Carolina prenup can specify that a business owned before the marriage, businesses created during the marriage, along with its future growth or any eventual buyout money, will remain the separate property of the business-owning spouse rather than becoming part of the marital estate subject to equitable division in a divorce.

Can a prenup protect inheritance in South Carolina?

Yes. South Carolina’s equitable apportionment statute, S.C. Code § 20-3-630, already excludes property acquired by one spouse through inheritance, devise, bequest, or gift from someone other than the other spouse from the definition of marital property subject to division. That exclusion can weaken if the inherited property is commingled with marital assets or if marital effort contributes to its growth. A prenuptial agreement lets a couple confirm, in clear written terms, that inherited or gifted property, and any appreciation in its value, will remain separate no matter how the marriage unfolds.

Marital property in South Carolina

Is South Carolina a community property state?

No, South Carolina is an equitable apportionment state. Rather than presuming that everything acquired during the marriage is automatically split 50/50, a South Carolina court divides marital property based on what it finds fair given the specific circumstances of the marriage. (S.C. Code § 20-3-620).

How is property divided in a divorce in South Carolina without a prenup?

Under S.C. Code § 20-3-620, a South Carolina court apportions marital property after weighing a list of factors, including the duration of the marriage, each spouse’s contributions to the acquisition, preservation, and appreciation of marital property, and, notably, marital misconduct or fault if it affected the parties’ economic circumstances or contributed to the breakup of the marriage. Marital property is defined under S.C. Code § 20-3-630 as property acquired during the marriage regardless of how it’s titled, but it excludes property owned before the marriage and property received individually by inheritance, devise, bequest, or gift. For example, a home purchased during the marriage with income earned by either spouse would generally be marital property subject to apportionment, regardless of whose name is on the deed.

Does a prenup override equitable apportionment in South Carolina?

Yes, a valid and enforceable prenuptial agreement can reshape how property would otherwise be divided under S.C. Code §§ 20-3-620 and 20-3-630. Because South Carolina courts, consistent with Hardee v. Hardee, allow engaged couples to define their own property arrangements by agreement, a couple can specify in advance which assets are separate, how future property will be characterized, and how anything acquired together will be divided, effectively substituting their own terms for the court’s default apportionment analysis.

What is separate property in South Carolina?

South Carolina’s equitable apportionment statute, S.C. Code § 20-3-630, generally excludes from the marital estate property acquired by either spouse before the marriage and property acquired during the marriage by inheritance, devise, bequest, or gift from someone other than the other spouse. In practical terms, what a spouse owned before the wedding, and anything given or left to that spouse individually, is typically treated as separate and outside the apportionment process, unless it becomes commingled with marital property in a way that erodes its separate character.

Spousal support in South Carolina

Can a prenup waive spousal support in South Carolina?

Yes. In Hardee v. Hardee, 585 S.E.2d 501 (2003), the South Carolina Supreme Court held that prenuptial agreements waiving alimony, support, and attorney’s fees are not per se unconscionable, nor are they contrary to the public policy of the state. Parties may agree to any terms they wish as long as the court deems the contract to have been entered fairly, voluntarily, and reasonably.

If the pending bill becomes law, a couple who wants a support waiver to carry extra protection could seek court approval of the full agreement under proposed Section 20-1-110, which would require separate legal counsel for both parties, full financial disclosure, the thirty-day advance notice period, and a finding that the agreement is fair and equitable, in exchange for a rebuttable presumption that the waiver, and the rest of the agreement, is valid.

How is alimony determined in South Carolina without a prenup?

Without a prenup, South Carolina courts award alimony under S.C. Code § 20-3-130, considering factors such as:

• The duration of the marriage
• Each party’s physical and emotional health
• Each party’s education and employment history
• The standard of living established during the marriage
• Each party’s current and reasonably anticipated earnings and earning capacity
• Each party’s marital and nonmarital properties
• Marital misconduct or fault, if it affected the parties’ economic circumstances or contributed to the breakup of the marriage
• Tax consequences of a support award

South Carolina’s statutory bar on awarding alimony to an adulterous spouse (S.C. Code § 20-3-130(A)) applies on top of this factor list and can eliminate a spouse’s eligibility for support entirely.

How much does a prenup cost in South Carolina?

How much does a prenup cost in South Carolina?

Here’s South Carolina prenup attorney Taylor Long’s perspective on prenup pricing in the state:

South Carolina prenup costs can vary depending on the complexity of a couple’s finances and which attorneys are involved. Couples who want their agreement structured to meet the pending bill’s stricter standards, including separate counsel for both parties and full financial disclosure, should expect costs toward the higher end of that range, since that approach requires two attorneys’ involvement rather than one.

What is the cheapest way to get a prenup in South Carolina?

The most cost-effective approach is generally to build the agreement using an online prenup platform and then have a South Carolina-licensed attorney review the finished draft at a flat rate, rather than paying an attorney hourly to draft it from scratch. Platforms like HelloPrenup let couples work through a guided questionnaire to generate the agreement and then connect with a South Carolina-licensed attorney for review.

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How much does a prenup lawyer cost in South Carolina?

The average attorney in South Carolina charges $300 per hour. Family law attorneys handling prenuptial agreements in South Carolina typically charge somewhere between $250 and $450 per hour, with rates in Charleston, Columbia, and the Greenville-Spartanburg area often running toward the higher end. A simple agreement between two people with basic assets generally takes fewer billable hours than one involving hefty business valuations, lengthy trusts, or extended negotiation between each side’s attorney.

How to get a prenup in South Carolina

How do I get a prenup in South Carolina?

Couples in South Carolina generally take one of two paths today: (1) each partner hires a separate attorney, with one drafting the agreement and the other reviewing and negotiating changes, or (2) the couple uses an online prenup platform to generate the agreement and adds attorney review on top. Generating a first draft online and using attorneys mainly for review tends to be the faster, less expensive option, and it’s also compatible with the pending bill’s requirements, since it still allows each party to be independently represented.

Can I write my own prenup in South Carolina?

Technically, yes, but that written agreement should always be reviewed by an attorney. This is because under current South Carolina law, prenups waiving marital property rights must come with attorney review. Many prenups do waive marital property rights, so it’s likely that attorney representation will be needed. In addition, a fully self-drafted agreement, without attorneys for either party, would not qualify for court approval under the pending bill, since proposed Section 20-1-110 would specifically require both parties to be represented by separate legal counsel.

How long does it take to get a prenup in South Carolina?

Most couples should expect the process to take anywhere from a few weeks to a couple of months under current law. Full financial disclosure is central to satisfying the Hardee v. Hardee standard, so gathering account statements, property records, and debt information properly is worth the time it takes. If a couple wants to build in the pending bill’s proposed thirty-day advance notice period (which is recommended), even before it’s required, that adds a specific minimum timeline of 30 days prior to the wedding day on top of the drafting and review process.

Do I need a lawyer to get a prenup in South Carolina?

Yes, it is practically a requirement under South Carolina law (section 20-3-630(A)(4)) which requires attorney representation for marital property waivers. In addition, the pending legislation makes building in attorney representation another requirement in order to create a presumption of validity.

Caselaw & enforceability

Are prenups enforceable in South Carolina?

Yes, prenuptial agreements are enforceable in South Carolina under the standard set out in Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003), and Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114 (Ct. App. 1989): the agreement must be free of fraud, duress, or coercion, supported by adequate financial disclosure or independent knowledge of the other party’s finances, and not unconscionable when signed. A party trying to avoid enforcement bears the burden of showing the agreement falls short on one of those points, and under current law, that showing is generally made by a preponderance of the evidence.

Can a judge throw out a prenup in South Carolina?

Yes, under current law, a judge can decline to enforce a prenuptial agreement found to involve fraud, duress, coercion, inadequate disclosure, or unconscionability, consistent with Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003).

For example, a judge threw out a prenup in South Carolina in Holler, where the wife was a foreign national whose visa was expiring, creating time pressure to marry. She did not have independent legal counsel and could not understand the agreement’s language. The financial disparity was extreme, as the husband had a higher net worth, and the wife had zero assets. The court found these circumstances created duress and made the agreement unconscionable, stating that when one party is in a position to dictate terms to such an extent as to substitute his will for the other party’s will, it becomes an agreement emanating entirely from his own mind rather than a mutual, voluntary agreement. Holler v. Holler, 364 S.C. 256, 612 S.E.2d 469 (Ct. App. 2005).

What can void a prenup in South Carolina?

Under current law, a South Carolina prenuptial agreement can be found unenforceable if:

• It was procured through fraud, duress, or coercion
• One party lacked adequate financial disclosure or independent knowledge of the other’s finances
• The agreement was unconscionable when signed
• Lack of legal representation
• Signed too close to the wedding day
• A provision violates public policy or requires an illegal act

If the pending bill is enacted, a court-approved agreement meeting its requirements would still be subject to these same basic categories of challenge, but the burden of proof for a challenger would rise substantially.

Duration & after-marriage

How long does a prenup last in South Carolina?

A valid South Carolina premarital agreement generally remains in effect for the duration of the marriage unless the couple adds in an expiration date, sometimes called a “sunset clause.” Some couples add a sunset clause ending some or all of the agreement’s terms after a certain number of years or on a specific wedding anniversary, such as the 20th wedding anniversary, often to reflect that a long marriage has become far more financially intertwined than it was at signing.

Can you get a prenup after marriage in South Carolina?

No, since a premarital agreement by definition has to be signed before the wedding. However, South Carolina courts may enforce postnuptial agreements and they have generally been willing to enforce these agreements between spouses under principles similar to those used for prenuptial agreements, though there isn’t a dedicated South Carolina statute addressing them the way there is for marital property generally. This is exactly the gap the pending bill is aimed at: proposed Section 20-1-110 would explicitly define postnuptial agreements and give the family court jurisdiction to approve them under the same disclosure, counsel, and fairness framework used for prenups, provided the postnuptial agreement is also given to both parties at least thirty days before it’s signed. If it passes, it would give South Carolina couples a much clearer, statutorily backed path to a postnuptial agreement than currently exists.

Can you change a prenup in South Carolina?

Yes, you can change a prenuptial agreement in South Carolina, but the process and requirements depend on how you want to modify it. South Carolina recognizes both postnuptial agreements (which can effectively replace or modify prenuptial terms) and allows parties to enter into new agreements after marriage that modify their original prenuptial arrangement. The clearest example comes from Bailey v. Bailey, 330 S.C. 326, 498 S.E.2d 891 (Ct. App. 1998), where a couple originally planned to sign a prenuptial agreement but ran out of time before their wedding. Their attorney suggested they return after marriage to enter into a postnuptial agreement instead, which they did about a month later. The Court of Appeals confirmed that circuit courts have jurisdiction to enforce postnuptial agreements regarding nonmarital property, treating them as valid contractual arrangements that can address the same issues as prenuptial agreements.

Cross-border & recognition

Is a prenup signed in another state valid in South Carolina?

Yes, a prenuptial agreement signed in another state can be valid in South Carolina. The case law shows that South Carolina courts will recognize and enforce out-of-state prenuptial agreements, though they apply South Carolina’s enforceability standards rather than automatically deferring to the law of the state where the agreement was executed.

Peterson v. Peterson, 510 S.E.2d 426 (Ct. App. 1998) provides the clearest example. In that case, the parties had a separation agreement that contained a choice-of-law provision stating it “shall be governed and be construed in accordance with the laws of the State of New York.” The Court of Appeals acknowledged the choice-of-law provision but noted that their opinion did not interpret the agreement under New York law because they were addressing jurisdictional issues rather than substantive enforceability. This suggests that while South Carolina courts recognize choice-of-law clauses in marital agreements, they may still apply their own procedural and jurisdictional rules.

What happens to my South Carolina prenup if I move to another state?

This depends on how the new state treats choice-of-law provisions and its own premarital agreement law. Many states will generally respect a South Carolina choice-of-law clause and apply South Carolina’s Hardee v. Hardee standard to interpret the agreement, particularly where the couple had a meaningful connection to South Carolina when they signed it. Other states may still apply their own public policy limits to specific provisions, even while otherwise deferring to the parties’ choice of law. For couples who live in South Carolina now but may relocate later, a clearly drafted choice-of-law clause improves the odds that South Carolina law will continue to govern the agreement, though it isn’t a guarantee in every jurisdiction.