August 10, 2017
When you get engaged to your significant other, there is not a lot on your mind other than living happily ever after with the person of your dreams. Because of these emotions, it can be difficult to plan for the idea that potentially your marriage may end in divorce. Any plans that you make for this possibility might seem like you are already doubting whether getting married is really a good idea.
However, there is one easy way to protect yourself, should you and your spouse ever decide to divorce in the future. It not only will benefit you in the case of divorce; instead, but it has the potential to help both you and your spouse during your marriage, as well.
A prenuptial agreement is a formal contract that you and your soon-to-be spouse sign before your marriage. The provisions of a prenuptial agreement can vary, but most often have parts dealing with divorce issues, like custody or the division of property. One of the key characteristics of a prenuptial agreement is labeling property that you already own as nonmarital property, rather than marital property. This classification means that, in the case of a divorce, the property will not be split with your spouse according to South Carolina’s equitable distribution law.
Additionally, South Carolina courts have repeatedly recognized and enforced prenuptial agreements, as the South Carolina Supreme Court in Hardee v. Hardee adopted a three-part test to determine whether a prenuptial agreement should be enforced:
- Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable? (“unconscionable” basically means that the agreement is so one-sided that no reasonable person would sign it)
- Have the facts and circumstances changed since the agreement was executed, so as to make it enforcement unfair and unreasonable?
For a prenuptial agreement to be enforceable, there needs to be an adequate financial disclosure to the other party, so don’t try and hide assets. By attempting to hide things from your soon to be spouse you may potentially allow your spouse to argue that they were not fully informed at the time of the agreement.
Take the time to determine whether your situation calls for a prenuptial agreement. Or, if you find yourself on the receiving end of a proposed prenuptial agreement, take the time to seek the advice of a lawyer on whether to sign it. You can contact a South Carolina attorney at King Law Offices, PLLC to see whether we can be of service to you.
King Law Offices is a full service law firm with an outstanding team of professionals who work diligently, creatively and compassionately on behalf of our clients each day. We serve the Upstate of South Carolina and Western North Carolina. Call 888-748-KING (5464) today for a free consultation.