Pre & Post Nuptial Agreements in South Carolina
Prenuptial and postnuptial agreements are often misunderstood. They’re similar to buying insurance to protect your assets from potential risks, but hoping that the damage never occurs. A pre or postnuptial agreement is an excellent way to protect you and your spouse from making decisions from a place of pain, anger, or resentment. Remember that you don’t have to implement it if the marriage works out, but it will give you so much peace.
What are they?
By default, marital property in South Carolina is subject to equitable division. However, a couple can have an exception to this law, which gives the court a mandate to equally divide any property acquired during the marriage. If you want your individual properties to remain separate properties, consider entering into prenuptial and postnuptial agreements.
Difference between Pre and postnuptial agreements
Prenuptial and postnuptial agreements serve the same purpose; laying terms for property division during divorce. Their only difference is in the timing. For instance, a couple enters into a prenuptial agreement before the wedding. Postnuptial agreements, on the other hand, are usually signed during the marriage.
Prenuptial and postnuptial agreements are essential because they ensure that your assets do not automatically become marital property. Therefore, if you or your spouse decides to dissolve the marriage, none of the properties will be subjected to the requirements of marital property.
However, note that the court will only recognize and enforce the terms of these agreements if they are appropriately drafted by a knowledgeable and experienced prenup attorney in South Carolina. Also, remember that your spouse can challenge the prenuptial or postnuptial agreement. So, make sure that you work with an attorney that will ensure that the agreement remains enforceable amid all these challenges.
Why would you need one?
Advantages of prenuptial and postnuptial agreements
- Opens communication
Discussing expectations on finances and property with your spouse may sound scary, but it’s an excellent way to build trust and communication in the marriage. Notably, one of the factors that prolong divorce processes is the issue of property. However, talking about it and agreeing can eliminate these hurdles and allow for a quick resolution.
- Defines expectations
Financial matters are a cause of conflict in many American homes. However, establishing your financial expectations as a couple and streamlining it can prevent many issues going forward. A pre and postnuptial agreement can address many contentious issues that can occur during the marriage or after its dissolution.
- Fastens and simplifies the divorce process
When pursuing a divorce, you’ll be required to pay legal fees and other court costs. It is worth noting that the more you disagree on issues, the more time it takes, and the more money you spend. Prenuptial and postnuptial agreements are critical for addressing the problems that many couples struggle with when seeking divorce. Find an attorney that can help you draft a proper agreement today, and save yourselves the agony of future endless court battles.
- Protects separate property
Is there a property that you wish it remains separate? Are there heirlooms that you want to remain yours solely in case of a divorce? Pre and postnuptial agreements can ensure that those specific assets are not considered marital property, which is subject to division. Therefore, as the judge classifies the properties before the equitable division of marital property, the specific assets will be exempted.
- Redefines marital property
Without any form of legal agreement, the court assumes that any property you acquired during the marriage belongs to both spouses in equal measure. However, you can use a pre or postnuptial agreement to redefine what will qualify as marital property. You can also state whether you will opt for an equal or unequal distribution of marital property. Notably, the court respects whatever a couple decides to include in their pre and postnuptial agreement.
- Protects you from a debt burden
Unless stated otherwise, marital debt is usually split among the couple in divorce. A pre or postnuptial agreement can be used to state that individual obligations remain separate liabilities in the event of a divorce. That protects you from sharing in the burden of your spouse’s debts on loans or credit cards.
- Can be challenged
Did you know that your spouse can contest the enforceability of a prenuptial agreement? If they can prove that they signed the agreement under pressure, the court might refuse to recognize and enforce it all together.
So, if you want to prevent such challenges in the future, make sure that the time and place to discuss prenuptial agreement is appropriate. Remember that your partner should have enough time to think about the terms of the agreement before signing any document. Doing it a few days before the wedding is often not a good time, and can hinder its enforceability.
- Can kill the romance
Every couple’s dream is to stay together for eternity. Therefore, bringing up the subject of property allocation in divorce can sort of kill the vibe. However, understanding that marriages go beyond the romance can help a couple discuss pre and postnuptial agreement with a positive outlook. A good attorney can guide you and break down everything you need to know before you sign the document. He/she will also ensure that nothing will hinder it from being enforced in the future.
- It can be unbalanced
Everyone wants to believe that their marriage will last a lifetime; and will often get into the union with a tunnel vision. Thus, many people don’t pay attention to the terms of the pre or postnuptial agreement with the belief that they won’t need it. Signing an agreement that favors your partner more is a possibility if you don’t get a good family attorney to draft or review your pre and postnuptial agreement. A good document should favor both parties equally in the event of a divorce.
When to get one
If you need a prenuptial agreement, you have to get it before your wedding. But if you are already married, you can get a postnuptial agreement that addresses the same issues in case of a divorce. And if your prenuptial agreement no longer suits your needs, a couple can amend it with a postnuptial agreement. You should also consider a marital agreement if you;
- Are involved in business
- Are a stay-at-home parent
- Have a lot of personal assets
- Expect an inheritance
When you do not need one
You may not need a pre or postnuptial agreement if you and your spouse are okay with a 50/50 division of marital property in the divorce. A judge in South Carolina usually subdivides all the assets and liabilities acquired and accrued during the marriage equitably. If that’s what you both want, an additional agreement is unnecessary.
What issues do pre and postnuptial agreements address?
- Division of debts like mortgages, credit card debts, and loans
- Debts that remain separate
- Property to be divided upon divorce
- The ratio of marital assets division
- Allocation of property to children from previous relationships
- Inherited family property that needs to stay separate
- Alimony, maintenance, and support to be paid; the amount and duration after divorce
- Obligations for coming up with a will or trust for asset distribution on death
Issues that pre and postnuptial agreements don’t address
- Child support
- Child custody
- Parenting time
Only the courts in South Carolina have the mandate to decide on the above issues. Remember that the judge will decide based on the interests of the children.
How to get a pre or postnuptial agreement
Do you need a pre or postnuptial agreement? Or aren’t too sure if it is right for you? Scheduling a consultation with a family lawyer in South Carolina can help you clear those doubts and get the facts right.
The attorney can guide you in creating the content for the pre or postnuptial agreement.
Thereafter, each of your attorneys will review it and advise his/her client accordingly. Remember that the document ought to be fair to both parties.
The agreement has to be in writing and needs the signatures of both parties. Remember that you can amend the terms of the agreement if it no longer serves your needs and that of your spouse.
Note that any amendments need to be signed by both parties to be enforceable.
Considerations for South Carolina
- Sufficient time for the parties to go through and understand the terms of the pre or postnuptial agreement
- Full financial disclosure of both assets and debts, by both parties
- Each party needs to have a separate legal attorney to advise them on the various aspects of a pre or postnuptial agreement
What can go wrong?
Pre or postnuptial agreements may not be enforced if;
- It’s one-sided
An agreement that is unfair towards one party may not be executed.
- There was no full disclosure
If any of the parties did not fully disclose or gave inaccurate information about their assets, liabilities, and income, the marital agreement might not be enforced.
- A party was threatened or coerced
Each party needs to have signed the pre or postnuptial agreement voluntarily. If there was any form of coercion or threat, the agreement might be nullified.
- It’s oral
Only written and signed pre and postnuptial agreements are enforceable. Oral marital agreements are not valid in South Carolina.
- Beyoncé and Jay Z
In their prenuptial agreement, Jay Z was to pay Beyoncé $10 million if their marriage ended before two years. They also agreed that Jay Z has an obligation of paying Beyoncé $1 million annually until they hit a 15-year mark in marriage. Additionally, for every child they had, Beyoncé would receive $5 million.
- Justin Timberlake and Jessica Biel
The couple agreed that Justin Timberlake would have to part with $500,000 every time Jessica catches him cheating.
- Crystal Harris and Hugh Hefner
The couple agreed that Hugh’s $200 million fortune and the Playboy Mansion remain separate property. Notably, when Hugh died, Harris had to leave the mansion as agreed.
Remember that pre and postnuptial agreements aren’t just for the rich and famous; anyone can enter into it and model it to fit the uniqueness of their circumstances. So if you think that a pre or postnuptial agreement is right for you, it’s time to discuss it with a prenup lawyer South Carolina residents trust. The document can protect your separate assets from an inheritance, gifts, and individual businesses from equitable division during a divorce. You will also have peace of mind knowing that decisions on the marital property will not be made with charged emotions. And contrary to the opinion of many, a pre or postnuptial agreement can strengthen a marriage by forging solutions to financial issues, which wrecks a lot of marriages. That explains the increase in the number of couples seeking postnuptial agreements in recent years.
Talk to Our Experienced South Carolina Family Law Attorney
If you or a loved one is considering a pre or postnuptial agreement, contact our experienced family law attorney in Charleston, SC. At Crossroads Family Law, we will provide you with legal advice and assistance in drafting and filing your agreement before or after your marriage. Our Charleston attorney will guide you but ensure your assets and rights are protected. Call 843-474-4000 if you have any questions on family law in South Carolina.