A prenuptial agreement is a contract between two persons made in contemplation of their marriage. Such contracts also may be called “antenuptial agreements,” “premarital agreements,” “marriage contracts,” or “marriage settlements.”
Historically, prenuptial agreements were considered valid if its purpose was to distribute property upon the death of a spouse, but not upon divorce. The reason for excluding divorce from prenuptial agreements was that such agreements were thought to undermine the institution of marriage by making divorce too easy.
Now, however, South Carolina enforces prenuptial agreements upon divorce. It is common for parties to enter such contracts to define who gets what upon divorce, especially when inherited “family property” is involved, or when one or both parties already have children to protect the children’s inheritance, or when one or both parties already owns substantial assets.
South Carolina Code specifically allows written contracts to exclude property from divorce proceedings. “’Written contract’ includes any antenuptial agreement of the parties . . . as to income, debts, and assets.” S.C. Code § 20-3-630(a)(4). The Supreme Court of South Carolina has held that antenuptial agreements “will be enforced if made voluntarily and in good faith and if fair and equitable.” Hardee v. Hardee, 355 S.C. 382, 387 (2003) (citing Stork v. First Nat’l Bank of South Carolina, 281 S.C. 515 (1984)).
But beware: drafting an enforceable prenuptial agreement is not as straightforward as it may appear. Great care must be taken, and specific requirements must be met, for any prenuptial agreement to pass the tests for “made voluntarily,” “in good faith,” and “fair and equitable.”