What Happens If You Have a Prenup and Get Divorced in South Carolina?

When couples decide to tie the knot, they often have high hopes for a happily ever after. But the reality is, not all marriages stand the test of time. That’s why many couples choose to sign a prenuptial agreement, or “prenup,” before saying “I do.”

A prenup is like a roadmap for your marriage, outlining how you and your spouse will handle important financial matters if you ever decide to part ways. In this article, our family law attorneys explore what happens when a couple with a prenup gets divorced in South Carolina, including how the prenup impacts property division, alimony, and other key issues.

What is a Prenuptial Agreement?

A prenuptial agreement is a legal contract that two people sign before they get married. It spells out how they’ll handle their money and property if they ever get divorced. Prenups can cover a wide range of issues, from how you’ll divide up your bank accounts and real estate to whether either spouse will pay alimony.

Requirements for a Valid Prenup

For a prenup to be enforceable in South Carolina, it must meet certain legal requirements:

1. Both parties must voluntarily agree to the prenup. You can’t force your fiancé to sign a prenup under duress or threats.
2. Each person has to provide complete and accurate info about their finances, including income, assets, and debts.
3. The prenup must be in writing and signed by both soon-to-be spouses.
4. The terms can’t be unconscionable, meaning they can’t be so unfair that they shock the conscience. A prenup that leaves one spouse destitute probably won’t hold up in court.

As long as your prenup checks these boxes, a South Carolina divorce court will usually enforce it. But if something’s amiss, the court can toss the prenup and decide issues like property division and alimony under state law instead.

How a Prenup Impacts Divorce Proceedings

If you have a valid prenup, it will serve as the guiding light for your divorce. The terms you and your spouse agreed to will largely determine who gets what when you split up. This can streamline the divorce process and minimize fights over money and property.

Property Division with a Prenup

In South Carolina, a prenup can dictate how you’ll divide your marital property in a divorce. Marital property generally includes most assets and debts you acquired during the marriage, regardless of who holds title. But a prenup can override these default rules.

For example, your prenup might state that your premarital home remains your separate property if you divorce. Or you could agree to split certain marital assets 50/50, even though South Carolina law would normally divide property “equitably,” which might not be an equal split.

As long as your property division terms are fair and reasonable, the court will likely uphold them. But if your prenup is extremely lopsided, a judge could refuse to enforce it.

Alimony and Spousal Support

Prenups often address whether either spouse will pay alimony if the marriage ends. In South Carolina, there are several types of alimony, including periodic (monthly) payments, lump-sum awards, and rehabilitative support to help a spouse become self-sufficient (S.C. Code Ann. § 20-3-130).

Your prenup could waive alimony entirely, meaning neither spouse will pay support to the other. Or you might limit alimony to a certain amount or duration. These provisions are generally enforceable as long as they don’t leave one spouse facing dire financial hardship.

One thing to note: even if your prenup waives or limits alimony, the court can still award temporary spousal support while your divorce is pending.

Challenging a Prenup in Divorce Court

While South Carolina courts start with the presumption that a prenup is valid, there are some situations where a spouse can challenge the agreement in a divorce. If you have concerns about the fairness of your prenup, it’s worth exploring these potential arguments with an experienced divorce lawyer.

Grounds for Challenging the Validity of a Prenup

A spouse could ask the court to set aside a prenup if:

1. They signed under duress, meaning they were coerced or threatened into agreeing to the prenup against their will.
2. One spouse committed fraud or failed to fully disclose their assets and debts before signing.
3. A spouse lacked the mental capacity to understand the prenup, perhaps due to illness or intoxication.
4. The terms are unconscionable, meaning the prenup is so outrageously unfair that no sensible person would agree to it.

If any of these factors are present, a South Carolina divorce court has the power to invalidate part or all of the prenup.

Burden of Proof in Prenup Challenges

Challenging a prenup in court is an uphill battle. The spouse trying to get out of the agreement has to prove it’s invalid. Simply having second thoughts or regretting your decision to sign won’t be enough.

The bar to overturn a prenup is high in South Carolina. If the agreement is properly drafted and executed, meets legal requirements, and has fair and reasonable terms, a divorce judge will likely enforce it. That’s why it’s so important to have an attorney review your prenup before you sign.

Modifying or Amending a Prenup During Marriage

Even if you have a solid prenup in place, your financial circumstances may change over time. Perhaps you started a business together or had children. If you and your spouse want to modify your prenup to reflect your current situation, you can do so with a postnuptial agreement.

A postnup is similar to a prenup, but it’s signed during the marriage rather than before. It allows you to change the terms of your original prenup, as long as you both agree and put it in writing. Just like with a prenup, it’s essential to have an attorney draft or review any postnup to ensure it meets South Carolina’s legal requirements.

The Benefits of Working with an Experienced Divorce Attorney

Prenups, postnups, and divorce can be complex and emotionally charged. The decisions you make now can impact your financial well-being for years to come. That’s why it’s so important to have a skilled family law attorney by your side.

At Steele Family Law, we have extensive experience drafting, reviewing, and enforcing prenuptial agreements in South Carolina. We know the ins and outs of South Carolina divorce laws and how local judges tend to interpret these contracts. Whether you’re considering a prenup before marriage or facing divorce with an existing agreement, we can protect your rights and advocate for your interests.

If you’re ready to take control of your financial future, we’re here to help. Contact Steele Family Law today to schedule a consultation with one of our skilled prenup and divorce attorneys. We’ll review your situation and craft a tailored legal strategy to meet your needs.