Prenuptial Agreements: Do I need one and how do I know it will be enforceable?

Prenuptial Agreements (Also referred to as antenuptial agreements) were once thought to be for celebrities and the ultra wealthy (10 Biggest Celebrity Prenups).  Today, however, they are much more common.  Some are getting married for the second time and want to avoid another difficult divorce, and others simply look at the high rate of divorce as an ominous reality and want to protect their little nest egg (however small or large).  Because couples are marrying later in life, particularly those with a bachelor’s degree or higher, many want to protect the assets they’ve worked hard to acquire before saying “I do.”  The bottom line is “you don’t have to be a Rockefeller or Trump to need a premarital agreement.”

Bankrate.com suggests you should consider having a prenup if you:

  • Have assets such as a home, stock, or retirement funds;
  • Own all or part of a business;
  • May be receiving an inheritance;
  • Have children and/ or grandchildren from a previous marriage;
  • One of you is much wealthier than the other;
  • One of you will be supporting the other through college;
  • You have loved ones, such as elderly parents, who need to be taken care of;
  • You have or are pursuing a degree or license in a potentially lucrative profession (such as, law or medicine);
  • You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

I would add to this list – if either of you has substantial debts.  A prenuptial agreement can protect your marital property from your spouse’s premarital creditors.

After you’ve decided that you need a prenup, you should tell your partner sooner than later.  Ideally, you should have an attorney draft your prenuptial agreement at least six months before the wedding.  This helps to close the door to any future claim of duress to invalidate the agreement.  While it may be possible to draw up and execute the agreement a few days before your wedding, it’s not smart.  It is in your best interest to provide the document to your partner at least 4 – 6 weeks before your wedding.  This will help ensure your agreement is enforceable.  If you’re planning to have a prenuptial agreement, a good rule of thumb is the Save the Date cards don’t go in the mail until you have met with your attorney, the agreement has been drafted, and presented to your partner.

The South Carolina Supreme Court has held that prenuptial agreements “will be enforced if made voluntarily and in good faith and if fair and equitable. . . .”  (see Hardee v. Hardee, 35 S.C. 382, 585 S.E.2d 501 (2003)).  The Court set forth three (3) elements to determine if a prenuptial agreement should be enforced:

  1. Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Id. at 389, 585 S.E.2d at 504 (internal quotations omitted).

In South Carolina, in order for your prenuptial agreement to be valid it must be in writing, executed voluntarily after full financial disclosure, and each party should be represented by counsel (or at least be given ample time to consult with an attorney).

The take home lessen is plan ahead, communicate openly with your partner about your finances, and consult with an attorney.