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Who Needs a Prenuptial Agreement?

June 10, 2024
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.

July 12, 2022
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.

As of October 15, 2021, Melissa Fuller Brown’s law practice is transitioning to a mediation only practice. From this date forward, she will accept family law mediation matters.

October 8, 2021
As of October 15, 2021, Melissa Fuller Brown’s law practice is transitioning to a mediation only practice. From this date forward, she will accept family law mediation matters. Please email her at melissa@melissa-brown.com to schedule a mediation.

ATTORNEY MELISSA F. BROWN

Attorney Melissa F. Brown

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Melissa F. Brown

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Melissa was one of two keynote speakers at the SC Family Law Intensive CLE in Asheville, NC, the first weekend of November 2018. These are her materials provided to the participants, and the materials include case law, ethics rules & useful forms.

On Friday, September 21, 2018, Melissa F. Brown is giving the above named presentation at the popular, annual continuing legal education program, Hot Tips from SC’s Coolest Family Law Attorneys, which she also co-hosts with Vance Stricklin. The attached document is a pdf of her PowerPoint Slides.

These documents accompany Melissa’s presentation on Friday, September 21, 2018, in Columbia, SC. These forms are designed to help potential clients identify all social media and other ESI accounts so any potential issues, risks, violations of state and federal law against the potential client or perhaps accidentally by a potential client can be discussed at the initial consultation.

UCCJEA CHARTS

Melissa F. Brown explains how to simplify the process of introducing text messages into evidence by utilizing inexpensive software that identifies the sender and receiver as well as the date and time of the message. Her recommendation is much better than trying to introduce a series of screen shots that often do not identify the sender, receiver or date and time of the message. Judges are appreciative and overcoming the authentication hurdle is easy. In addition, she explains how to organize otherwise cumbersome long email chains without affecting their authenticity and use these messages effectively at trial.

Melissa F. Brown amongst other prominent Family Law attorneys contributed on their favorite Mac apps in the Family Lawyer Magazine. Melissa wrote about PhoneView, a Mac app that costs $29.99, and amongst its benefits is its organization of text messages in an understandable, identifiable chronological presentation. Previously, we had to introduce cumbersome screen shots that were not always easy to follow. This program makes it much easier for a judge to read and quickly grasp the point a client wants to make regarding a text stream conversation.

Keynote presentation by Melissa F. Brown, Esq. given on November 5th at the AAML PreConference CLE, Chicago, IL.

In October 2014, Melissa F. Brown will give an ethics technology presentation about Social Media and ESI at the ABA’s Fall 2014 Family Law Seminar in Stowe, Vermont. The paper accompanying her presentation is titled, “Presenting Your Case Using Social Media: How to Protect Your Client & Yourself From Ethical Pitfalls.” This article is part of a presentation that I am giving at the ABA Fall 2014 Family Law CLE in Stowe, VT.

Melissa explains the importance of preserving ESI, as well as how to obtain ESI from the opposing party.

Spoliation Letter Templates for preservation of ESI.

This introduction to Safety and Security in a Digital Age includes examples of scenarios that show the difficulty of using electronic evidence in family law cases and was presented by Melissa Brown and Ken Raggio at the AAML Mid-Year Conference in San Juan, Puerto Rico on March 19, 2013.

The American Academy of Matrimonial Lawyers hosted a conference this March, 2013 in which Melissa Brown spoke on the topic of Safety and Security in a Digital Age. Her article, previously published, has been updated and will provide valuable and useful information to both attorneys and clients alike.

Descriptions of useful apps for Family Law Attorneys that will not only organize your personal and professional lives, but also greatly enhance the management and research involved with your cases.

Melissa Brown presented this KeyNote presentation with Rick Robertson, Esquire, of Plano, Texas, at the Houston Family Law Trial Institute in May 2012.

Melissa Brown’s article published in the May 2012 issue of South Carolina Lawyer magazine. Article explains proper interaction between Guardians ad Litem and Custody Evaluators in contested custody actions.

This article was presented January 27, 2012 as part of the 2012 Guardian ad Litem Training and Update program in Columbia, South Carolina.

This powerpoint gives an overview of the complexities among the UCCJEA, UIFSA, PKPA, and Hague Convention provisions so that attorneys can easily answer difficult jurisdictional questions when handling complex multi-state or multi-national custody and support litigation. It contains useful flow charts and supports the larger jurisdictional chart on jurisdiction.

This jurisdictional chart unravels the complexities among the UCCJEA, UIFSA, PKPA, and Hague Convention so that attorneys can easily answer difficult jurisdictional questions when handling complex multi-state or multi-national custody and support litigation.

Presented June 3, 2011, at a local CLE for newly licensed attorneys practicing family law in Charleston, SC.

Presented June 3, 2011, at a local CLE for newly licensed attorneys practicing family law in Charleston, SC.

SC Bar CLE Solo Hot Tips Program, presented Friday, September 24, 2010.

The South Carolina Lawyer magazine, a publication of the South Carolina Bar, published Melissa F. Brown’s article “Safety and Security in a Digital Age” as its featured story. The article is pertinent to all lawyers and clients alike, and provides valuable information to protect oneself.

This handout of PowerPoint slides is the focus of Melissa Brown’s February 2010 presentation at the South Carolina Bar CLE “Top Trial Lawyers Tackle Evidence.” This presentation will teach litigators how to introduce and authenticate evidence posted on websites, including social networking sites such as Facebook, MySpace, LinkedIn, Twitter and others, to support a client’s position or impeach an opposing party or a witness.

Melissa F. Brown’s article, which was authored with the research and writing assistance of Ashley Simons, a 2L student at the Charleston School of Law, was published in the Winter 2010 issue of The Family Law Review, a publication of the Family Law Section of the State Bar of Georgia.  It discusses the growing misuse of technology in family law litigation. In addition to exploring the various ways litigants are falling victim to an opposing party’s tactics, this article further explores how certain states, particularly Georgia, are addressing this vastly growing technological phenomenon.

This PowerPoint Presentation is part of a presentation Melissa Brown gave to the Family Law Section of the South Carolina Bar during the 2010 Annual Convention. Focusing on the growing misuse of technology in the family law arena, this presentation provides an in-depth discussion of SpoofCards, TrapCall Cards, spoofed text messages, GPS surveillance, spyware and KeyKatchers, as well as applicable case law.

This handout of PowerPoint slides accompanies the article referenced below, To Tweet or Not to Tweet: Social Networking- Help or Hindrance to the Family Law Practice?, and was presented by Melissa Brown, in January 2010, at the LEI National CLE Conference in Vail, Colorado.  Focusing on the practicality and importance of Twitter in the legal profession, this presentation not only provides step by step instruction on setting up a Twitter account, but further explores the important considerations attorneys must contemplate when engaging in this type of online social networking.

This article was the focal point of Melissa Brown’s January 2010 presentation in Vail, Colorado to the LEI Family Law Group at the National CLE Conference.

This handout includes a list of relevant 2009 South Carolina cases as well as PowerPoint slides. These materials were presented by Melissa Brown at the Dixon Hughes PLLC Annual Litigation Conference to members of their litigation team comprised of CPAs from South Carolina, North Carolina, Florida and West Virginia. The purpose of this presentation was to educate forensic financial experts on recent case law relevant to their expertise, as well as to address the valuable services these professionals provide to family law attorneys.

This article discusses using the South Carolina Rules of Evidence, statutes and case law to lay the proper foundation or to attack an improper foundation when a child’s out of court statement is offered into evidence at trial.

This article discusses the excited utterance hearsay exception and its particular relevance to Family Law issues.

This article discusses how this software enables attorneys to create timelines for use when meeting with clients and at trial.

This article discusses both the impact of and distinction between intrinsic and extrinsic fraud upon a Family Law case.

This article addresses federal law’s post-divorce health insurance coverage as well as its impact, cost and potential danger to the employed spouse’s soon to be ex-spouse.

There is a federal law that affects gun owners subject to certain restraining orders. In states where many people own guns, especially for recreation, it is important for Family Law attorneys to understand how law might unintentionally impact a client and how to avoid this dilemma.

This article discusses the frightening reality of information in Family Court files that is available to the public and the inherent danger in having parties’ private finances, assets, debts and the like available to the public and how to protect your private information.

This article discusses the shocking reality of people who try to argue facts in one court and then go to another court and argue just the opposite. An example of this is claiming one is unmarried in a Bankruptcy Court proceeding to get debts discharged while at the same time arguing in Family Court that the same person is married and entitled to assets and support.

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