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.

Tips for The Wise Divorcee

Once a judge signs your “Final Order and Decree of Divorce” the divorce process is complete.  You’re free to walk naked in your home, go on a trip, and dominate the TV remote (for other ideas see: Thrive in Life).  There, however, are likely loose ends that you should tie up to ensure nothing throws a wrench in your new plans.  The following information is provided to help you create a list of “to-do’s.”  This is not a comprehensive list and is merely general information.  It may not be specifically applicable to your case depending on the particular facts of your divorce.  If you have any questions about the Decree you should contact your attorney immediately.  For tax advise, you should contact your tax preparer.

1.  Make a new will.

2.  Review existing life insurance, annuities, pension, profit sharing plans, IRA’s, 401(k)’s, and other types of insuring agreements in which you have named your former spouse as a beneficiary.  If you do  not want your former spouse to remain a beneficiary on these policies or plans, then you must change the beneficiary.

3.  Keep in mind, court orders regarding responsibility for payment of debts and liabilities are effective between you and your former spouse, but do not bind the creditor (for example your mortgage lender).  If your former spouse is responsible for payment of any debts or liabilities for which you are also a named borrower, keep an eye on your credit report or follow-up with the lender to make sure these debts and liabilities are paid as agreed.

4.  If you still have joint credit cards with your former spouse, the only sure way to protect yourself against liability for further charges is to cancel the credit card.  You should notify the credit card company directly by certified mail, return receipt requested, that you wish to close the account.

5.  Before you sign any future tax return or take any action with respect to your federal or state income tax returns, please review your situation with your tax advisor.

6.  If you’re vehicle was jointly titled, you should re-register it solely in your name.

7.  Make sure all joint bank accounts are closed and distribute the balances per your divorce decree.

8.  If you were awarded custody and wish to move out-of-state or a considerable distance from your current home in the future, discuss your intentions with your attorney before you put your plan into action.

9.  Keep a written log of all support payments in the future.  This should include the date due, amount due, date paid, and amount paid.  This will be handy if there’s any problems down the road.

10.  Try to co-parent effectively.  Keep in mind that just because someone was a horrible spouse does not mean they are a horrible parent.  Co-parenting websites such as Our Family Wizard provide an excellent tool to communicate and share information without directly speaking to your former spouse.  Plus, if you and your co-parent reach an impasse, you have very clear and accurate documentation of who said what and when it was said.

10 Myths About South Carolina Family Law

1.  If you were married in S.C., your divorce should be filed in S.C.  Where you were married is not relevant in determining where you can get divorced; where you and your spouse currently reside is what matters.  In order to file for divorce in S.C., at least one of the parties must have been a resident of S.C. for more than a year, or both parties must have resided in S.C. for at least 3 months.  

2.  It’s always a good idea to file before the other person does in order to get the upper  hand.  The person who files fist (Plaintiff) has equal rights to person who responds to the complaint (Defendant).   

3.  As long as you’re separated, you can date other people.  You are married until the day of your divorce.  Dating during a separation period could permanently bar you from alimony and may affect custody, no matter what your separation agreement says.  Also, remember S.C. Family Courts do not require proof that you’ve actually committed adultery; it is only necessary to prove that you had the inclination and the opportunity.  Just being seen in suspicious circumstances may be enough proof.  

4.  If you have lived with your girlfriend/ boyfriend in S.C. for over 5 years,  you’re married by Common Law.  Common Law Marriage does exist in S.C., but it is not determined by the length of time a couple has lived together.  

5.  A parent who is not paying child support has no right to visitation with his or her child.  Visitation rights are not linked to a parent’s payment or non-payment of child support.  

6.  If you’ve been married for less than a year, you can get an annulment.  Annulments are extremely rare, extremely hard to obtain and are not based on the amount of time you’ve been married.  

7.  If you lose your job, you can stop paying child support.  To modify a child support order, you must file an action to seek relief from the family court.  If you don’t pay your child support as ordered arrears will accrue and you may be held in contempt.  

8.  The father can’t get custody in S.C.  Either parent can get custody; it is determined based on what’s in the best interest of the child.  Also, just because a person is a less than stellar spouse, does not necessarily mean they are a bad parent.

9.  I paid for it, it’s mine.  Property acquired during your marriage is likely “marital property” and may be subject to division by the Family Court.  Even property that was “yours” prior to the marriage may now be “marital property” and may be subject to division by the Family Court.  

10.  You can get divorced based on emotional abuse.  Emotional abuse is not a ground for divorce in S.C.  There are only 5 grounds for divorce in S.C.:  Adultery, Physical Cruelty, Desertion for more than one year, Habitual Drunkenness/ Drug Abuse, and Separation for a period of one year.

SC Child Support Guidelines and Shared Parenting

Section 4.1 of the South Carolina Child Support Guidelines states that “[f]or the purpose of this section, shared physical custody means that each parent has court-ordered visitation with the children overnight for more than 109 overnights each year (30%) AND that both parents contribute to the expenses of the child(ren) in addition to the payment of child support.”  It seams clear that simply crossing the 109 overnight threshold should not be sufficient in itself to warrant reduced child support.  My recent experience, however, has taught me to be very leery (and breakout the calculator) when advising my client whether or not to consent to an extra few nights of visitation per year for the non-custodial parent.      My client has her children 249 nights per year and they are with their father 116 nights (31.8% or just 7 nights over the threshold).  It is not, however, an arrangement in which both parents are actually functioning as custodial parents, contributing fairly to the expenses of their children.  The Defendant’s expenses have not increased as they would in a true shared custody arrangement.  At the temporary hearing, the judge acknowledged that the guidelines don’t necessary work in this situation but stated that we are bound by them and calculated child support using Worksheet C, resulting in the payment being roughly $350 a month less.      For me, this was one of those days that you return to your office from court shaking your head.  For my client, however, it was an even harder pill to swallow.  When she agreed to an extra 7 nights of visitation, she was trying to be “fair” and encourage the Defendant’s relationship with his children.  Merely having 7 extra nights with his children each year should not have substantially relieved him of his duty to pay child support.   This begs the question – is it in the best interest of the child to participate in settlement discussions regarding visitation not only with a calendar but a calculator in hand?