How to get a prenuptial agreement in South Carolina

In the weeks leading up to your wedding, there are a lot of things to prepare. You need the rings, have to check the flower order, pay for the venue, get the marriage license, and sign a prenuptial agreement.

Prenups tend to get a bad rap as unromantic or assuming the worst: that the marriage will end in divorce. But, a prenuptial agreement can create a strong foundation and provide a sense of stability for a new marriage. 

Marriage is not only a joyful celebration of love and romance but also a legal contract. It brings two individuals together in the eyes of the law and grants them additional rights, including an interest in each other’s property. 

In the event of divorce, marital property is divided based on South Carolina laws or the predetermined agreement that’s written into SC prenuptial agreements. Such an agreement grants you choice over what happens in the event of a divorce. 

South Carolina prenuptial agreements

In South Carolina, prenups play a crucial role in what happens to a couple’s joint property if they get divorced. As a legal contract, it must be entered into willingly and meet a few other legal requirements to be valid and enforceable. There are also several limitations to prenuptial agreements in SC. 

As case law and requirements for prenup differ from state to state, it’s important to research your state’s laws or to seek the help of a local law firm if you’d like help creating a prenuptial agreement for you and your fiance.

What is a prenuptial agreement?

Prenups, also known as antenuptial agreements, premarital agreements, premarital contracts, or prenups, are a legal contract signed by you and your future spouse before getting married. The prenup into effect as soon as you get married.

The primary purpose of a prenup is to define how a couple’s finances, assets, and real property will be divided if the couple gets divorced. While discussing divorce before getting married may seem unromantic, it allows you to discover financial information about your spouse and agree upon the split of assets at a happy time.

It’s not uncommon today for people to marry later in life or to get married more than once. When getting married later in life, you may be bringing significant assets or debts with you into the marriage that you don’t want your husband or wife to have access to or be burdened with. 

A prenuptial agreement defines the terms you agree upon with your spouse around your shared and individual finances, assets, debts, and real property. Creating a prenup requires a financial disclosure of all assets. 

If you enter into a prenup with someone but then never get married, the contract doesn’t take effect.

How much does a prenup cost in South Carolina?

The cost to create a prenuptial agreement in SC varies widely. There are a few different ways you could get a prenup:

• You can write your own prenuptial agreement for free, but you must ensure it abides by South Carolina law. 
• You can write your own prenuptial agreement and have it reviewed by a lawyer. A lawyer may charge a flat fee or per-hour fee. Different lawyers have higher or lower fees.
• You can seek individual legal counsel for you and your spouse and have the lawyers draft a single prenuptial agreement for you. This would be the highest-cost option.

What you need to know about prenup law

If you’re considering a prenuptial agreement for you and your husband or wife, it’s important to have a basic understanding of prenup law. To be considered valid, a prenuptial agreement must contain a few specific things and can’t contain some information.

Can I write my own prenup in South Carolina?

Yes, you can write your own premarital contract in South Carolina
If you’re writing your own premarital agreement, be aware of the minimum requirements for a legally binding document. Basic contract rules apply to prenuptial agreements. The agreement must be in writing and be signed by both potential spouses. 

Most prenuptial agreements survive the scrutiny of the South Carolina courts if they include the following elements:

• The agreement is considered reasonably fair
• The agreement doesn’t promote divorce
• Each spouse entered the agreement voluntarily 
• Each spouse has an accurate picture of the other’s financial situation
• The assets and liabilities of each spouse were fully disclosed before signing

Working with independent legal counsel, where each spouse has their own attorney, can ensure that the prenup is equitable and represents each spouse. In South Carolina, premarital contracts are regulated by statutory rules and case law. South Carolina has not signed the Uniform Prenuptial Agreement Act or UPAA. 

How long before marriage should you get a prenuptial agreement?

Most importantly, a prenup must be written, agreed to, and signed prior to marriage. The process shouldn’t be rushed or put someone under duress to sign. Give yourself plenty of time for discussion, financial disclosure, and navigating any obstacles that arise.

Consider starting the process of creating a prenuptial agreement in the weeks leading up to your wedding day.

How to implement a prenup

South Carolina courts generally uphold prenuptial agreements if both parties sign it knowingly and willingly and have a clear understanding of what they’re signing. 

It is recommended that both parties be advised by a separate, experienced family law attorney to ensure they understand the agreement they’re signing and that the contract doesn’t favor one partner over the other.

A prenuptial agreement may be considered invalid if:

• One spouse signed the document involuntarily or while under threat, coercion, or duress.
• If a provided financial document is fraudulent. 
• If a reasonable person wouldn’t have understood or been aware of the other spouse’s entire financial ecosystem.
• If circumstances change, making enforcement unfair, the agreement will no longer be valid.

If you want to adapt or end your premarital agreement, you can. The changes to or dissolution of the agreement must be in writing and signed by both parties. You can also include a “sunset” provision in your prenup, which ends the agreement after a certain number of years of marriage or other events, such as the birth of a child or joint purchase of property.

Unless otherwise written into the contract and agreed upon by both parties, the agreement is effective until either death or divorce.

Prenup mistakes to avoid

If you’re creating your own prenup that will later be reviewed by a lawyer, there are a few big mistakes you should try to avoid.

• Lack of full disclosure: To be fair, both parties must fully disclose all assets and liabilities.
• Too one-sided: Known as “agreement unconscionable,” a prenup that favors one spouse or the other won’t be valid.
• Non-consensual: If one party enters into the agreement under coercion or threat, the agreement is no longer valid
• Including child support or child custody: A prenuptial agreement in South Carolina cannot include provisions for child support or custody. Both child custody and child support are regulated by other laws in the state of South Carolina. 

Benefits of premarital agreements

While the initial idea of a prenuptial agreement may seem unromantic, it can provide a lot of protection to one or both spouses. No matter the size of your estate or wealth, you can benefit from a prenuptial agreement.

• Asset protection: You don’t need significant assets to receive protection from a prenup. It protects individual wealth acquired before or during the marriage. It clearly separates marital property from individual assets. It can also designate such items from a previous marriage to be excluded from the agreement.
• Clarification of financial rights and responsibilities: The agreement clarifies the individual and joint financial responsibilities and rights of both parties when it comes to income, debt, division of individual and marital property, spousal support, and inheritance rights. This can minimize conflicts and improve relationship transparency.
• Preservation of family wealth: The agreement can safeguard family assets and protect family wealth or inheritances from division if the couple gets divorced.
• Reduce conflict: Divorce is always a messy, stressful process. Premarital agreements can make divorce and property division less contentious.
• Preservation of business interests: If one spouse owns a business or is part of a family business, a prenup can include terms to protect those business interests from division. 

Prenuptial agreement FAQs

What can be included in a prenup?

A prenuptial agreement should define whether assets are marital or individual property and how those assets will be handled upon divorce. In South Carolina, any property acquired during marriage is considered marital property. Any such property would be divided according to the premarital agreement or state case law if no such agreement exists.

The agreement can also determine spousal support, the right to a spouse’s estate after death, other death benefits, access to family assets, and entitlement to inheritance. 

Premarital agreements should be unique to the circumstances of your situation and customized for you and your future spouse so it can benefit both parties equally.

What shouldn’t be included in a prenup?

In South Carolina, a prenup cannot include provisions for child custody or child support, whether for existing or future children. The agreement should also not include: 

• unfair provisions
• unconscionable terms
• agreements that go against public policy
• clauses that aren’t financial, such as changes a spouse must make to their appearance 

A valid prenup must be entered into and signed voluntarily and not under duress. It should be fair and understandable to a reasonable person.

Who needs a prenup?

Typically, prenuptial agreements were considered only for those with large estates or those entering into a second marriage. 

However, anyone can benefit from a prenuptial agreement. No matter the size of your financial assets, this type of agreement can afford you protection from asset or property division.

Are prenups enforceable in South Carolina?

Yes, prenuptial agreements are enforceable in South Carolina. To be enforceable by a South Carolina court, it must be:

• Voluntary
• Fair and equitable
• Made in good faith
• Entered into with separate, independent legal counsel
•  
• Each spouse made a full financial disclosure of assets, debts, and income

Can prenups be modified?

An agreement can be modified, but it must be done in writing and signed by both parties. 

Prenuptial agreements: the final word

A premarital agreement can protect prospective spouses in South Carolina and make the divorce process less stressful if there is a legal separation. Such an agreement is unique to every couple and can be customized to fit individual needs and financial matters.