A pre-nuptial agreement is a legally binding contract between two people in contemplation of marriage that outlines how assets and liabilities are to be divided between them in the event the marriage ends in divorce. Since it is a contract, basic contract requirements must be present, including that the agreement must be in writing and both parties must sign the agreement.
Under South Carolina law, a prenuptial agreement can be enforceable as long as certain other factors are met. They are included, but not limited to, the following:
- Was there any fraud, duress, misrepresentation, nondisclosure, or mistake in of material facts by one person or both people upon signing the pre-nuptial agreement?
- Is the agreement fairly balanced between both parties?
- Are the material facts present at the time of signing the same material facts at the time of the nuptials?
The agreement can offer other terms of the marriage, including, but not limited to the following:
- What laws will be apply to the divorce and the prenuptial agreement during the divorce, if a divorce were to occur;
- How assets will be distributed in the event that one person dies during the marriage; and
- Sections that protect one person from assuming any pre-marital debts of the other person as a result of their marriage.
- Sections that describe the structure of any spousal support that may be paid, if any.
As situations can arise in every marriage, having a pre-nuptial agreement allows both people to establish mutually-beneficial terms of a potential divorce before the wedding. They allow a couple to contemplate future issues and plan the best course of action for them, and allows decisions to be made while emotions are reserved and not made in the "heat of the moment."
If you are contemplating getting married and would like to discuss a pre-nuptial agreement, or contemplating getting a divorce and have pre-nuptial agreement in place, please contact my office today for a free initial consultation to understand your rights under the agreement.