No one wants to have to find out whether their prenuptial agreement will hold up in court. However, if you have had the foresight to enter into a prenuptial agreement with a future spouse, or are currently considering one, it’s best to know how to approach it in a way that would ensure its enforceability should you find yourself in family court litigation down the road.
Below we’ve outlined some of the red flags in proposed prenups that affect whether it will, in fact, be considered valid and enforceable in family court. Reviewing the points below before entering a prenup may very well eliminate potential problems for you with regard to its enforcement later on.
Agreements signed where both spouses didn’t have all the facts may be rejected. Under South Carolina law, both future spouses must make an accurate financial disclosure prior to entering a prenuptial agreement. While the spouses don’t have to create an agreement that dictates how every aspect of their financial lives is handled in the event of the divorce, both parties are entitled to know what they’re getting into financially before signing a prenup. If a spouse later discovers that the other spouse’s finances were substantially different (either for better or worse) after the couple got married, then one spouse can raise the fact that he or she was deceived by the other spouse’s incomplete disclosures, and possibly have the agreement thrown out.
Where one spouse was unduly pressured to sign the agreement, it likely won’t hold up in court. If it’s proven that one spouse was unduly coercive in getting the other spouse to agree to the prenup, the court will not enforce the agreement against the spouse who was coerced. An example of such duress might be threats from the future spouse with greater bargaining power that he or she will call off the wedding if the other person doesn’t sign the agreement as it is written. Other factors that play into this consideration are whether the coerced spouse had the opportunity to seek legal counsel before entering the agreement, and how soon before the wedding date he or she was presented with the agreement to review and sign.
Agreements can’t be overly favorable to one spouse over the other. A contract will be considered “unconscionable” when it is so lopsided toward one of the parties that no reasonable person would knowingly sign such an agreement as the non-favored party. If a court determines that an agreement is unconscionable and thus patently unfair, then the judge may deem the prenup invalid.
Prenuptial agreements in South Carolina cannot preemptively dictate child custody or child support arrangements. While you can negotiate a particular arrangement for alimony or division of property in your prenuptial agreement, you cannot predetermine what will be a fair amount of child support for a party to pay or how to divide custody of your children. These issues are excluded from what can be preemptively bargained for in a prenup because parents can’t contract away the family court’s duty and authority to act in the best interests of children. This wouldn’t prevent parents from coming to an agreement in the midst of divorce litigation as to how they should share custody and financial responsibility for their children—it is simply not something that can be enforced in a prenuptial agreement.
The best way to ensure that your prenuptial agreement is valid is to hire an attorney whom you trust to draft the agreement, make sure that each future spouse has a sufficient amount of time to review the agreement and that both parties have made adequate financial and asset disclosures beforehand, and encourage each spouse to hire his or her own individual attorney to review the prenup before signing. If you are considering entering a prenuptial agreement before getting married in South Carolina, contact experienced family law attorneys well in advance of the wedding to ensure that you reach an agreement that will feel fair both to you and your future spouse. Feel free to contact Cate & Brough Law Firm for a consultation on your prenuptial agreement questions and drafting, at 864-585-4226. We also invite you to visit our website at www.thecatelawfirm.com.
Cate & Brough, P.A.
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