Due to the media and the movies, antenuptial or prenuptial agreements have received a somewhat bad reputation. However, they are a very useful tool for many people with an upcoming marriage. They serve a purpose for young and old, rich and poor. The agreement might be to protect one’s property from the spouse in the event of a divorce, or to protect the inheritance of a child from a previous marriage. The main function is to guarantee that in the unfortunate event of a divorce, you have control of your interests.
The law in South Carolina, is that all property is considered marital property and divided 50/50. Any issue that you do not want handled that way, or left up to a judge to decide in a divorce, you need to address it in a prenuptial. If your partner has mentioned a prenuptial agreement to you, or you have considered the possibility that you might need one, contact a Greenville prenuptial agreement lawyer today. Our family law attorneys are here to assist you with your prenuptial agreement and any other family legal issues you may need assistance with.
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What can a Prenuptial Agreement Cover?
- How separate and marital property is to be managed during the marriage;
- Ensures equitable distribution of property and assets;
- The right of each spouse to acquire and sell property during marriage;
- How each spouse’s debts will be handled and if the debts will remain separate;
- What will happen to property in the event of a divorce;
- Whether or not a divorce will yield spousal maintenance payments;
- The right of each spouse to the inheritance of the others;
- The formation and provisions of wills and trusts;
- What will happen to family property, such as a family owned business, in the event of death or divorce;
- Leaving property to children, either children the couple has together or children from a previous relationship;
- The right to certain benefits, such as death benefits from a life insurance policy.
South Carolina is not one of the states that recognized the Uniform Premarital Agreement Act. South Carolina courts have ruled that properly executed prenuptial agreements are legal and binding, including those that address alimony, support and even attorney fees, but they must follow the rules of the agreement. Your Legal Team must be aware of the following guidelines that make the prenuptial agreements valid, and follow the rules carefully.
What are the Requirements to Make a Prenuptial Agreement Valid?
- The agreement is reasonably fair
- Each spouse signed the agreement voluntarily
- Each spouse fully disclosed all assets and liabilities
- Each spouse has a generally accurate picture of each other’s finances
- The agreement terms do not promote divorce
When marriages end and it is time to bring the prenuptial agreements out, courts can be resistant to acknowledge them. Judges must insure that the agreement was drafted and signed prior to the vows being exchanged back when everybody was in love. This prevents greedy younger men marrying successful wealthy women and attempting to take their money after a short marriage, or a pretty young lady marrying a wealthy older man with dollar signs in her eyes. Or it can be as simple as not letting your grandmother’s antique china be put in the marital property to be used as a negotiating tool.
What are the Reasons That Most Prenuptials are Invalid or Rejected?
- Not in writing. People try to present verbal pre-nup, claiming they both agreed, which are not considered valid.
- Not properly executed. Pre-nup must be written and signed before the wedding.
- Must sign of their own free will; other spouse, family, or attorney cannot pressure to sign.
- Not given enough time for reading and considering. Must have time to understand the contract.
- Invalid Provisions. Must be sure there are no illegal clauses in the agreements. May void entire contract.
- False Information. Anything in the agreement that can be proven to be false can be used to void the entire thing.
- Incomplete Information. Failing to provide pertinent information will also void the agreement if discovered.
- No Independent Counsel. Due to potential ramifications of the agreement, each party should have an attorney.
Although some parties attempt to use the prenuptial agreement to protect the possessions that they bring to the union, and ensure that the spouse does not benefit from marrying them, South Carolina courts will not uphold an “unconscionable contract”. If the contract clearly leaves one party in financial hardship and the other living in prosperity, the court will refuse to acknowledge the contract and make the parties submit income and expenses and assets. Alimony would then be awarded according to South Carolina law, depending on the length of the marriage.
What Cannot be Addressed by a Pre-Nup?
Prenuptial agreements cannot indicate child support or child custody. Those things must be determined by the court based on the current and historical data. Child custody is very highly scrutinized. The better parent will be awarded child custody and the other parent should be awarded visitation. When the children came into the relationship with one parent that parent will be rewarded custody unless there are serious issues to contradict this and then the child’s other natural parent will be considered.
South Carolina and most other states have enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJA). The purpose of this law is to determine which state has the jurisdiction to make the award of child custody, to modify, or to enforce child custody. Under UCCJA, South Carolina Family Court has the jurisdiction if it is the home state of the child, the child has significant connections to people inside South Carolina, the child is in the state for safety purposes, or if no other state in the US meets any of the other 3 criteria.
Contact a Greenville Prenuptial Agreement Lawyer Today
Our Greenville South Carolina family law firm will use moral and ethical standards to help you determine if you need a prenuptial agreement and what would be appropriate to include. We put your needs first in order to protect the things you value most. Our goal is for you to have a long and happy marriage, but if that doesn’t happen we want to be sure to protect your interests. Contact us today to schedule your FREE consultation with a Greenville prenuptial agreement lawyer.