Prenup Agreements: Are They Enforceable? Can You Negotiate Alimony, Support And Even Attorney’s Fees?

Prenuptial agreements (or “prenups” as they are informally referred to as) are essentially contracts, whereby the parties negotiate in advance of their upcoming marriage what the terms of any equitable distribution and/or alimony monies or spousal support to be paid in the event of a divorce and even attorney’s fees.  Financial expert Suze Orman says that prenups are important for anyone and “doubly important” for those with significant assets they wish to maintain.  Many couples would be well-served to obtain a prenuptial agreement.  Suze Orman even goes further to advise non-married couples who live together to get a cohabitation agreement, referring to it as “the prenup for couples who aren’t officially married.”

Prenuptial Agreements Are Valid And Enforceable 

The South Carolina Supreme Court case of Hardee v. Hardee 355 S.C. 382, 585 S.E. 2d 501 (2003) 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 this state.”  The state Supreme Court did not stop there, but further held that the case of Towles v. Towles 256 S.C. 307, 182 S.E.2d 53 (1971), which, as argued in Hardee, stood for the proposition that a prenuptial agreement that voids “spousal support or alimony is against public policy and void,” was explicitly overruled.  You cannot get any more of an explicit statement than from the state Supreme Court holding that prenuptial agreements are legally enforceable in South Carolina.  If there was any confusion prior to Hardee the Court cleared it up with such broad language.

 

When A Prenuptial Agreement (or Any Contract) Is Void

While the court, in Hardee, did recognize that prenuptial agreements that waive alimony, spousal support and/or attorney’s fees are not necessarily void, there are some circumstances in which a court may indeed void a prenuptial agreement.  To be sure, the state Supreme Court cast the analysis that a court must engage in in the realm of contract law.  The Hardee court notes that if a contract is “unambiguous, clear, and explicit”, it must be strictly construed.  As such, the doctrines of contract law must be imported into family law.  Specifically, prenuptial agreements must be negotiated in such a manner so as to avoid “fraud, duress, mistake or through misrepresentation or nondisclosure of material facts.”  Furthermore, prenuptial agreements, like contracts everywhere, cannot be unconscionable.  Finally, the reviewing trial court must determine if “the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable.”

Preparing for and negotiating a prenuptial agreement can be fraught with nervous tension and requires a delicate and sensitive practitioner to minimize future potential conflict, while maintaining present day harmony. Robert Clark can juggle these competing demands and with aplomb.  If you or someone you know needs a family law attorney or would like to speak to one about other aspects of family law, contact us to setup an appointment.

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