Welcome to South Carolina Prenup Laws 101! If you call the Palmetto State home, then you know better than anyone that South Carolina is known for its barbeque, beaches, and the beautiful Blue Ridge Mountains. But you may be in the dark about South Carolina’s prenup laws. A prenuptial agreement (a.k.a. prenup) is a contract between two future spouses outlining certain financial terms that help align the couple while also protecting individual assets. So, grab a cool glass of sweet tea and a handful of boiled peanuts, and keep reading to find out more about South Carolina prenuptial agreements.
Is a prenup really necessary?
Yes, very (and we’ll explain why)! A prenup (also known as a “premarital agreement” in South Carolina) gives you and your fiancé the power to determine how property will be divided and whether either spouse will be entitled to receive alimony if you get divorced. Without a prenup, South Carolina’s default laws will make these decisions for you.
South Carolina is an equitable distribution state. This means that a court will divide your assets and debts based on what’s fair, which will vary from case to case. Although fair doesn’t always equal (50/50), your idea of what’s fair and the court’s idea about what’s fair may be completely different. Courts in South Carolina can examine a number of factors to decide what’s fair, including the relative age and health of the parties, contributions to the marriage, and the length of the marriage, just to name a few. Check out S.C. Code Ann. § 20-3-620 for the full list.
Additionally, without a prenup, the court can consider several factors to determine whether spousal support (known as “alimony” in South Carolina) is appropriate (S.C. Code Ann. § 20-3-130). These factors include each spouse’s income, ability to work, the length of the marriage, and more. Scan the full list at S.C. Code Ann. § 20-3-130.
Does this all sound like something you’d rather avoid? Then make sure you have a prenup in place before you make things official with your boo!
Are prenups enforceable in South Carolina?
Yes, prenups that adhere to South Carolina’s statutory requirements are valid and enforceable. To be valid in South Carolina, a prenup must comply with S.C. Code Ann. §20-3-630(4). Here are the requirements:
- Must be in writing.
- Must be signed by both parties.
- Both parties must voluntarily sign the agreement (i.e., each party has to sign based on their own free will).
- Must be fair and equitable (i.e., cannot be one-sided and overwhelmingly in one spouse’s favor).
- Both parties must be separately represented by legal counsel.
- Includes full financial disclosure to the other party regarding income, debts, and assets.
South Carolina courts also apply a three-part test adopted in Hardee v. Hardee, 585 S.E.2d 501 (2003) to determine the validity of a prenup:
- Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable? (i.e., one-sided)
- Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
What can you include in a South Carolina prenup?
Most of South Carolina’s prenup standards are governed by case law rather than specific statutes. This means you can review prior decisions by South Carolina courts to understand what types of clauses are enforceable in a South Carolina prenup. Here are some common clauses people often include in their South Carolina prenuptial agreements:
- Property division upon divorce, such as who gets the marital home and retirement account(s)
- Property management and ownership during the marriage, such as contributions to joint bank accounts
- Debt allocation upon divorce
- Debt obligations during the marriage (who is required to pay what debt while married)
- Spousal support modifications or waivers
- Gifts and inheritances from third parties
- Spousal elective share waivers upon death
- And more.
Based on cases like Hardee v. Hardee, 585 S.E.2d 501 (2003), Hudson v. Hudson, 757 S.E.2d 727 (2014), and Holler v. Holler, 612 S.E.2d 469 (2005), your prenup can address anything from property division to spousal support, as long as the terms are fair and consistent with public policy.
What would invalidate a South Carolina prenup?
In South Carolina, there are a few things you’ll need to steer clear of in order to have a valid and enforceable prenup. Check them out below:
Prenup wasn’t voluntarily executed: Both parties must sign the prenup free from “fraud, duress, mistake, or misrepresentation” (Holler v. Holler, 612 S.E.2d 469 (2005)). This means you cannot pressure or trick your fiancé into signing. If you do, that’s a surefire way to get your prenup tossed out by a South Carolina court.
For example, in Holler v. Holler, the court found that a prenup was unenforceable where the husband told the wife that signing a prenup was a requirement for marriage in South Carolina. The wife also couldn’t understand the terms of the prenup, as she was from Ukraine and spoke little to no English. And she could not afford an attorney or translator. Finally, the wife solely relied on the husband for financial support for herself and their unborn child. Due to her expiring visa, the wife couldn’t remain in the U.S. unless she signed the prenup. Based on these circumstances, the court found that the wife signed the prenup under duress.
Incomplete financial disclosure: South Carolina requires both spouses to fully disclose their financial situations S.C. Code Ann. §20-3-630(4). This means you have to give up the details on every asset and debt you have along with their corresponding values. For example, if you own real estate, it’s not enough to simply list its fair market value if you don’t own the property free and clear. You would also need to list the value of any mortgages against the property. If either spouse hides or misrepresents their financial situation, the court could decide not to enforce your prenup.
Unconscionable terms: South Carolina courts will not enforce a prenup with terms that are “so oppressive that no reasonable person would make them and no fair and honest person would accept them” Hardee v. Hardee, 585 S.E.2d 501 (2003). Basically, if your prenup overwhelmingly and unreasonably favors one spouse, a South Carolina court is unlikely to enforce it.
Terms that violate public policy: Your prenup cannot include terms regarding child support or custody as these matters are reserved for the court to oversee at the time of divorce (S.C. Code Ann. § 63-15-210 et. seq.) (S.C. Code Ann. § 63-17-310 et. seq.). Additionally, your prenup cannot include any illegal terms that would cause one spouse to break the law. Or really anything else against the public policy of South Carolina.
Can you waive alimony in South Carolina?
Yes, as long as the agreement passes the three-part test outlined in Hardee v. Hardee.
In the 2014 case, Hudson v. Hudson, 757 S.E.2d 727 (2014), the court enforced a prenup where both spouses waived alimony and would not be entitled to the other spouse’s non-marital or marital property. Both parties had independent legal counsel at the time of prenup. The wife agreed to use an attorney who was good friends with her husband. The husband hired separate legal counsel.
At the time of divorce, the wife had incurred additional debt while the husband acquired additional assets. As such, the wife argued the agreement was unconscionable and should not be enforced. However, the court disagreed. Here’s why:
- The wife was not pressured to sign the agreement and had the choice not to get married.
- The wife admitted that her attorney did not discuss the details of the prenup and merely told her that the husband was a good guy. However, the wife had the opportunity to hire an attorney who was not close friends with her husband.
- The prenup provided that both spouses waived their interest in the other’s property at the time of prenup and thereafter. The court did not find this to be so one-sided that a reasonable person would not sign it.
- The wife’s financial circumstances were substantially the same between the time of prenup and the time of divorce. At the time of prenup, the wife had few assets and was unemployed. At the time of divorce, the wife was employed and had the same assets that she entered the marriage with. The only difference was that the wife took a $17,000 loss following the sale of her business.
The bottom line? A South Carolina prenup is not automatically unconscionable where both spouses agree to waive their rights to alimony and the other spouse’s property, even if one spouse walks away from the marriage with less than their spouse.
Do you have to get the prenup notarized?
No, it’s not a legal requirement in South Carolina to have your prenup notarized. But, it’s still a good idea. Why, you may ask? Notarization gives you proof that your spouse signed the prenup if they ever contest the validity of their signature. Also, it gives you proof that your spouse was aware of the type of document they were signing if they try to claim otherwise in the future. Plus, notarization is super cost-effective and easy to do. Nowadays, you can get your prenup notarized online, making the whole thing a breeze and an easy way to protect your agreement.
Main takeaway on South Carolina prenups
Well, those are the nuts and bolts of South Carolina’s prenup laws! From the legal requirements to the contents you may include in a South Carolina prenup, you deserve a high-five for making it this far. Now that you’re a prenup scholar, you’re well on your way to starting the prenuptial agreement process. Just keep these legal requirements in mind and you’ll be back to enjoying the fun stuff in no time (weekend trip to Myrtle Beach, anyone?). Happy prenup planning!
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