Prenuptial Agreements

This blog has already visited the topic of prenuptial agreements, which are generally valid and enforceable in South Carolina.  Having a prenuptial agreement allows couples to consider how they would wish to divide assets, debts, and future income in the event of a divorce, which can help reduce stress in what is inevitably a stressful time.  But who needs a prenup, and what sort of provisions can it contain?

Are prenups useful for everyone?

A U.S.News.com personal finance article argues that nearly everyone could benefit from a prenup.  First, because state laws vary, it can be difficult to predict how a court will divide the assets from a marriage.  A prenup settles this question.  Second, negotiating a prenup can shed light on issues that might arise during a marriage.  For example, if both spouses go into the marriage with equal careers, but they anticipate one taking a break from career to stay home with children, how does the spouse who intends to keep working feel about alimony?  This could be an important issue if the couple splits up, given that the spouse who stays at home will likely take a severe hit to earning capacity.  Finally, the article points out that a typical prenup costs less than the average engagement ring.

What can a prenup include?

Prenups typically include terms that address the following issues:

  • which items are considered marital property and which are to remain separate property;
  • property division upon divorce;
  • what will happen to the marital residence;
  • who is responsible for premarital debts;
  • alimony obligations in the event of a divorce;
  • financial responsibilities of each spouse during the marriage;
  • how property is to be distributed upon death of either spouse (but be sure these provisions coincide with any estate planning documents);
  • which state’s law will govern the prenup; and
  • how disputes about the prenup are to be resolved (e.g., through mediation or arbitration).

Some prenups also include a so-called “sunset provision,” in which couples provide essentially that the prenup expires if they remain married for a certain number of years.

What cannot be included in a prenup?

There are a few subjects that a prenup generally cannot address:

  • child custody, support, and visitation (unless the provisions deal with one spouse’s child from a previous relationship);
  • anything illegal (as is true for all contracts);
  • anything the courts would consider unfair or “unconscionable;” or
  • anything that would encourage divorce.

What is necessary for a prenup to be valid?

A few standards must be satisfied to make a prenup valid and enforceable.  These include:

  • The agreement must be in writing and signed by both parties;
  • Both parties must make a full financial disclosure to each other. (See S.C. Code §20-3-630(4); and
  • Both parties should be separately represented by counsel.  One attorney cannot represent both parties because of the inherent conflict of interest.  If both parties do not have their own counsel, that may not automatically make the agreement void, but would raise questions as to its enforceability.

Consult a Greenville Family Lawyer

Although it is easy to find sample prenup forms on the Internet, it is important to consult an experienced family lawyer to create an agreement that is fair to both parties and enforceable.  Robert Clark, of Greenville Family Law, has the skill and compassion to guide you through this sensitive process successfully.  Contact the office for a consultation today.

 

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