Most people are familiar with prenuptial agreements and how they work in the event the marriage fails. Not as many know about postnuptial agreements. These are recognized in South Carolina and they serve functions similar to a prenuptial. However, it’s critical that any such agreement be properly drafted and that you understand its potential impact. A Greenville, SC family law attorney is best suited to help you determine if a postnuptial is right for you.
Marital agreements, such as prenuptial and postnuptial, usually concern questions about marital property. In Greenville, South Carolina, with some exceptions, all property acquired by either party during the marriage is considered “marital.” Marital property is subject to equitable distribution in the event the spouse later divorce. The main function of the postnuptial agreement is therefore to preclude certain properties and assets from equitable distribution.
The Differences Between a Prenuptial and Postnuptial Agreement
Couples who are intending to marry often resolve these questions by means of a prenuptial. But not everyone thinks to do so before tying the knot, and that’s why the postnuptial agreement exists. The only meaningful difference between the two is that the postnuptial is entered into after the couple is married.
The reality of divorce in America makes the postnuptial an attractive alternative to contentious divorce proceedings. Although a postnuptial cannot guarantee that your divorce will go amicably, it can help settle problems before they arise. Postnuptials are especially appealing to spouses who have substantial assets that they want to be protected in the event of divorce. They can even address related issues like spousal support. If you have concerns about how divorce may impact you, speak to an experienced Greenville, SC family law attorney.
Having an effective postnuptial agreement means having one that is comprehensive and legally enforceable. There are a few basics that every postnuptial agreement must have to be enforceable in South Carolina:
- The agreement has to be signed by both spouses
- Both spouses should retain legal counsel to review and advise as to the agreement
- The spouses should prepare a sworn financial affidavit, later attached to the agreement, that provides adequate disclosure of assets
- The agreement cannot be unconscionable, which in its simplest form means unreasonably oppressive
- The agreement must not be the product of fraud, duress, or mistake
A Greenville, SC family law attorney can explain other requirements that may apply in your case. The bottom line is that an agreement must meet certain standards to be legally sufficient. That takes time, and it means the parties cannot rush into a postnuptial agreement.
How to Prepare a Postnuptial Agreement
To prepare for the drafting and execution of a postnuptial agreement, there are some practical steps the spouses should take:
- List all personal and real property you brought into the marriage
- List all personal and real property you received after the date of marriage
- Itemize any gifts that you or your spouse received from family or friends
- Itemize any assets or properties that were purchased using only one spouse’s resources
- Be sure to cover all forms of property, including intangibles such as stocks and pensions
When you have everything ready, you should then meet with your Greenville, SC divorce attorney. Your attorney can review the assets you and your spouse have. Then, you can discuss how the assets will be handled in the event of divorce. You can also designate such matters as who will pay bills during your marriage and how taxes will be filed. The postnuptial can serve many functions related to property and assets, so ask your attorney how best to draft it.
LET OUR EXPERIENCED AND DEDICATED FAMILY LAW ATTORNEYS HELP YOU
At Greenville Family Law, we understand the role that a postnuptial agreement may serve. Although no one goes into a marriage thinking they may divorce, entering into a postnuptial is smart planning. But any marital agreement, whether prenuptial or postnuptial, has to be done right. We can help. Give us a call today to schedule a consultation with our dedicated and experienced team.