Couples who bring significant assets or debts to the marriage or where one or both is earning a substantial income should consider having a prenuptial agreement. Also, where one or both parties expect to inherit significant assets or receive gifts from third parties, a prenuptial should be part of the pre-wedding process. Additionally, couples who marry later in life or who are entering a second or third marriage may bring assets, debts, incomes and children to the new relationship. Protecting their hard earned nonmarital assets and future income is necessary so the individual and their children and grandchildren’s inheritance are protected through a prenuptial agreement. Prenuptial agreements require transparency. Both parties must provide the other with full financial disclosure, and there must be enough time before the wedding to allow the parties to discuss and negotiate the issues. Discussions often even include how the household bills will be paid, what happens to the home when one spouse dies, and the like. A prenuptial agreement also typically addresses whether alimony will be waived or how the payment of alimony is defined in the event of a separation or divorce. A prenuptial agreement can also address situations where one party brings significant debts to the marriage that the other spouse helps pay off during the marriage so the spouse who helps pay off the other’s debts is credited for their contributions upon a divorce or death. What issues are resolved by a Pre-Nuptial Agreement that would help determine whether I might need such an agreement or not? A prenuptial agreement may define which assets remain non-marital despite potential claims of equitable interest by a spouse; whether the parties will waive the receipt of alimony even if at the time of the divorce one party most likely would pay alimony to the other; how assets will be divided upon a parties’ death; whether fault will affect the division of assets and debts; whether parties will be responsible for their own legal fees and costs upon a divorce, and many other issues. The two big issues that prenuptial agreements in South Carolina cannot determine are the custody of children and the amount of child support. Can parties use the same attorney to draft and advise both parties regarding their prenuptial agreement? No . It is unethical for the same attorney to represent both parties regarding a prenuptial agreement. However, as a practical matter, one party’s attorney usually drafts the document, and the other party hires separate legal counsel to review and negotiate any necessary changes. Both attorneys also typically assist the parties in preparing the required disclosure of finances. It is vital that both parties receive independent legal advice in drafting and executing their prenuptial agreement as it alters the normal operation of law and valuable rights are usually waived. It also helps ensure that the agreement will later be found enforceable by the courts. Under what circumstances will a court not enforce a prenuptial agreement? A court may refuse to enforce a prenuptial agreement when the parties have (1) used the same attorney to advise them during the drafting and execution of the agreement; (2) if the parties did not freely, fairly, reasonably or in good faith enter into the prenuptial agreement; (3) if the parties did not give each other full and fair financial disclosure before they entered their agreement; (4) if the agreement was obtained through fraud, duress, mistake or through misrepresentation, overreaching or nondisclosure of material facts; (5) if the was agreement unconscionable meaning that it was so unfair no reasonable person should have agreed to the terms; or (6) if have the facts and circumstances changed so dramatically since the execution of the agreement that it is unfair and unreasonable to enforce it. Some of these factors depend greatly upon the specific circumstances of each case. In 2003, our state Supreme Court upheld the lower court’s denial of alimony to a spouse with diabetes and sponge kidneys who entered into a prenuptial agreement “freely and knowledgeably, with adequate disclosure, and without undue influence or overreaching.” The court was likely persuaded by the fact that wife suffered from those health conditions at the time of the marriage, she had legal counsel when she signed the document, she was advised not to sign the document and her husband provided her with full financial disclosure. In fact, as that case, Hardee v. Hardee , notes, “'[t]he current trend and majority rule allows parties to prospectively contract to limit or eliminate spousal support.'..." Hardee also provides a synopsis of courts’ attitudes toward prenuptial agreements, stating, “In the past two decades ... the courts have reconsidered... public policy in light of societal changes, and today, premarital agreements, so long as they do not promote divorce or otherwise offend public policy, are generally favored as conducive to the welfare of the parties and the marriage relationship as they tend to prevent strife, secure peace, and adjust, settle, and generally dispose of rights in property.” Is it ok to sign a PreNuptial Agreement the day before the wedding? While there is no specific law about how far ahead of a wedding a prenuptial agreement must be signed in order to be “valid,” it is safe to say that two weeks before a wedding is cutting it quite close. The closer to the wedding date, the stronger the argument that one party may later claim they were forced to sign under duress. Entering into a prenuptial agreement is requires competent, experienced legal counsel. Both parties also need time to work through the process thoughtfully and honestly. Do not hire an attorney who pulls forms from a friend or downloads the form from the internet as each case is different, and each couple has their own unique needs. When advised by wise, experienced counsel, especially when significant resources are involved, discuss your circumstances and consider hiring the attorney who is competent to draft a document that protects your needs and is fair to your fiancé.  Melissa Fuller Brown, Esquire, is the President of the South Carolina Chapter of the American Academy of Matrimonial Lawyers, a Board Certified SC Family Law Trial Attorney (Certified by the NBTA), Board Certified SC Family Law Mediator & Advanced Mediator (Certified by AAML), AV Rated by Martindale-Hubbell and chosen as a SC Family Law Super Lawyer. She now works primarily as a family law consultant and mediator in Mount Pleasant, SC.

In June 2022, The Board of Directors of the American Bar Foundation (ABF) invited Melissa Fuller Brown to become a Fellow in their organization. Fellows of the ABF comprise a global honorary society of lawyers, judges, law faculty, and legal scholars. Membership is by invitation only based upon recommendations of their peers in reliance upon legal careers that demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of our society. Membership is limited to only one percent (1%) of licensed U.S. lawyers and a limited number of international lawyers.