In the 1960s, Sherwood Schwartz created Mike and Carol Brady and their six children in The Brady Bunch, who gave many families lots of laughs as they blended their families. While Mike and Carol made blending a family look easy, the reality is that there are a lot of struggles that come with trying to turn two families into one. Aside from the many other complications, the spouses often have assets and family wealth or inheritances that they wish to keep for their own children, or they may have trust issues about allowing their new spouse to have free reign with their finances. One way to make blending a family easier is through a postnuptial agreement. These contracts can outline terms that the couple must abide by upon any future separation or divorce. To learn more about how blended families may benefit from postnuptial agreements, call King Law Offices at (888) 748-KING for a consultation with one of our skilled South Carolina family law attorneys to continue the conversation.
Prenuptial vs. Postnuptial Agreements
Many people are familiar with prenuptial agreements (prenup), but not as many have heard of postnuptial agreements (postnup). Those who are familiar with either agreement may mistakenly believe that these documents are only for those who have a lot of wealth, but they can be beneficial for anyone who is getting married or already married. They can be particularly beneficial for blended families. The main difference between a prenup and a postnup is that a prenup is signed prior to marriage, while a postnup is signed after.
Prenuptial Agreements
Prenuptial agreements are agreements signed before marriage. In a prenup, the spouses-to-be enter into the contract to address issues such as asset and property division, rights to marital and individual property, property management, spousal support or alimony, or other issues.
With a prenup, if one of the spouses does not agree to the terms, they can simply refuse to sign and not enter the marriage. This makes prenups typically easy to enforce unless there is evidence that one spouse signed it under duress, misrepresentation, mistake, or fraud, or if there are terms or other evidence that the prenup does not meet the legal requirements to be enforced.
Postnuptial Agreements
Postnuptial agreements are ones signed after the couple is married. Like a prenup, postnups address issues such as how to divide assets and property, the rights to marital and individual property, and other issues. However, because the couple is already married, they may come under more scrutiny. When the couple is already married, it is not as easy for one spouse to refuse to sign; they may feel that their marriage will end in divorce if they refuse.
While they may be scrutinized more closely, postnups are still generally enforceable in South Carolina. They must be in writing and signed by both spouses. They must also be fair and reasonable and disclose all assets and liabilities of both spouses. If any of these terms are not met, the postnup may not be enforced. Additionally, it is also recommended that each spouse have their own attorney to review the postnup before signing it. This can also ensure enforceability as an attorney can explain to their client if any of the terms may present a problem later.
How Can Postnuptial Agreements Benefit Blended Families?
While it may seem as though postnuptial agreements are all about the couple, what they are actually about is the family the couple has created, will create, or is considering creating. Blended families can benefit from these agreements, in particular. In a blended family, one or both spouses already have children from a previous marriage or relationship. These couples often wish to have or adopt children together, as well. This blending of children from multiple relationships into one family can be daunting, and financially, it can create complex and confusing issues as parents want to provide for their children but may not wish to provide for their spouse’s children in the same way. Postnups can clarify these issues for the spouses, their children, and any legal representatives who may be involved in the future to sort these matters out during a divorce or after the death of one of the spouses.
Asset Protection
Postnuptial agreements can help protect individual assets acquired before and during the marriage. In blended families, this can be important as parents may wish to pass specific assets to their own children, or one parent may have certain assets that they were given in a previous divorce that they wish to maintain for themselves and their children in the event of divorce. By creating a postnup, the couple can prevent disputes and ensure each spouse retains their own assets upon divorce or separation.
Clarify Financial Rights and Responsibilities
Blended families often mean there are existing alimony or spousal support and child support obligations. Postnuptial agreements can establish financial expectations, rights, and responsibilities regarding income, debt, property division, spousal support, and inheritance rights. For example, a postnup may outline that any child support the spouses receive for their children from previous relationships will remain separate from any family funds or may waive any rights to receive spousal support upon divorce. This can minimize conflict and promote transparency both between the spouses and between a stepparent and stepchild.
According to Rawhide Youth Services, it can take between two and five years for a blended family to establish itself. Over those years, a stepparent who may have created a prenup indicating they would not leave an inheritance for their stepchildren may have come to care for and love those stepchildren and want to leave them an inheritance. A postnup would allow them to create a new agreement in which they indicate that they will provide this inheritance. While it does not replace a will or trust, it can help to show the stepparent’s intentions.
Preserve Family Wealth
Blended families often have family assets. These may be from one of the spouse’s families, or it may be that one of the spouses was widowed and the assets were left for the children. Postnuptial agreements can protect these assets from being subject to division if the new couple divorces. This can also be particularly beneficial when one or both spouses have significant family wealth or inheritances, whether they have already received them or anticipate receiving them in the future.
Preserve Business Interests
Starting a business, alone or with others, can be both exhausting and amazing. When this business is started after the marriage, the spouse’s interests are considered marital property. If the business is started prior to the marriage, but the new spouse makes contributions to the business, they may still be entitled to a portion of the business. However, dividing business shares in this way can have a negative effect on the business’s viability and continuity. Additionally, determining how to divide a business in a divorce can be difficult.
S.C. Code Ann §20-3-630 allows couples to exclude property from being considered marital property. Therefore, a postnuptial agreement can protect the owner’s interests in the business, regardless of when the business was started or what contributions the other spouse may have made.
Safeguard Children’s Interests
The main reason blended families are referred to as such is that one or both spouses have at least one child from a previous relationship or marriage. This often means that one or both spouses want to ensure that their own children are provided for after a divorce or if they were to die. Postnuptial agreements assist with this by allowing the spouses to indicate that certain assets, including bank accounts or other money, are meant for those children.
Additionally, it can establish and preserve the children’s inheritance rights by allowing one or both spouses to waive their right to an elective share in the event that one spouse dies. S.C. Code Ann. §62-2-201 provides that a surviving spouse has the right to an elective share equal to one-third of the deceased spouse’s estate. However, S.C. Code Ann. §62-2-204 allows spouses to waive that right in whole or in part by written contract, agreement, or waiver. This can ensure that if one or both spouses want to give the entirety of their estate to their children, their spouse does not take the elective share and reduces the estate for the children. A compassionate family law attorney at King Law Offices may be able to assist you if you wish to create a postnuptial agreement that waives the right to an elective share.
Reduce Conflict and Stress
Another benefit postnuptial agreements may have for blended families is reduced conflict and stress. These agreements allow the couple to proactively address potential concerns and issues before they arise, when emotions are not running high, and the discussions surrounding them can be calmer and more logical. The postnup can be used to establish terms of asset division and other financial matters in the event the couple divorces. This can create a smoother, less contentious divorce process with less uncertainty and stress. Both spouses understand what they have agreed to and what they will keep or receive in the divorce without being fearful that the other spouse may hide assets or do something else that could harm them financially.
Can Postnuptial Agreements Be Part of an Estate Plan?
Postnuptial agreements cannot act as a will or trust, but they can be incorporated into an estate plan in several ways. One of the most common ways a postnup is used as part of an estate plan is to waive one or both spouses’ rights to an elective share. The elective share is the portion of a deceased spouse’s estate that the surviving spouse is entitled to, regardless of what the will’s terms are. This is to prevent spouses from being disinherited or treated unfairly in the will. A postnup can waive this right so that spouses can leave their estate to whomever they wish, such as their children.
Other ways a postnup may be beneficial as part of an estate plan include outlining how specific assets are to be distributed or requiring one or both spouses to create a will or trust to carry out the postnuptial agreement, such as creating a trust that provides for any children the couple has together. Finally, a postnup can also clarify asset distribution with different provisions, such as how assets are distributed if the couple is still married at the time of the death and how they are distributed if the couple is in the process of divorcing at the time of the death.
What Can Not Be Included in a Postnuptial Agreement?
While postnuptial agreements can be extremely versatile, there are some ways in which they cannot be used. For example, they cannot be used to force one spouse to agree to walk away from the marriage with absolutely nothing, including their own assets. While that is an extreme example, and most couples would never even consider those terms, it is important to know that there are two things in particular that cannot be included in a postnup.
Child Custody
Child custody is determined based on the child’s best interests at the time of divorce. Custody may be determined by the court, or it may be determined in a parenting plan that the parents create when they work out the details of their divorce. While many parents mistakenly believe that this applies only to their own children, it applies to all children in blended families.
If a stepparent develops a strong relationship with their stepchildren and wants to continue to have visitation or custody rights after a divorce, they cannot put this in a postnup. Instead, they would need to speak with a lawyer and determine whether they have any rights that can be asserted through the court, as stepparent rights are extremely limited.
Child Support
Child support cannot be included in a postnup. This is determined based on state guidelines and set calculations. While parents may have good intentions and want to include child support because they want to agree to pay more than would be legally required, they must allow the court to calculate child support based on South Carolina’s Department of Social Services Guidelines. If a parent paying support wishes to deviate from that amount and pay more, they should discuss their options for doing so with their attorney or ask the court how they can do so.
How to Avoid Having Your Prenuptial Agreement Invalidated
Postnuptial agreements are generally enforced in South Carolina, but there are instances where they are invalidated for not meeting the legal requirements. This can happen for a variety of reasons, such as including child custody or support details. However, there are a few things couples can do to help avoid having their postnuptial agreement invalidated.
Ensure Voluntary Consent From Both Spouses
Voluntary, informed consent from both spouses is critical to enforcing a postnup. If either spouse signed the postnup due to fraud, coercion, misrepresentation, or duress, the court may invalidate it if the couple gets divorced. Therefore, it is essential to be sure that both spouses fully understand the terms of the postnup and sign the agreement willingly.
Avoid Unconscionable Terms
South Carolina family courts will not enforce a prenup with unconscionable terms. Unconscionable terms are unfair or one-sided terms that benefit one party more than the other. This does not mean that the agreement has to be exactly even, but the terms must be substantially fair, with both parties benefiting from the agreement. Ensuring that the agreement provides reasonable terms for both spouses will help prevent the postnup from being invalidated.
Ensure Full Financial Disclosure
South Carolina requires full disclosure of all assets and liabilities when creating and signing postnuptial agreements. This means that the spouses must disclose all income, assets, property, debts, and other liabilities for the postnup to be valid. If they fail to disclose anything, the postnup can be invalidated. Therefore, it is also important to ensure that the spouses clearly document the receipt of all substantial assets so that there is no confusion about what they had when the postnup was created and what was acquired later. If one of the spouses realizes that they failed to disclose an asset (a forgotten bank account, for example), they should disclose such asset upon realizing their error, and the couple may wish to consult with an attorney to determine if the postnup needs to be rewritten.
Seek Legal Representation for Each Spouse Separately
While some couples may require legal assistance to work out the terms of their prenup, many may be able to do so on their own at home over the course of an afternoon or a relaxed dinner. Regardless of how they work out the terms of their prenup, both spouses should seek their own legal representation to review the agreement before they sign it. By ensuring each spouse has their own lawyer review the postnuptial agreement, they both have an opportunity to learn if any of the terms are unfair and avoid having the postnup invalidated later. Once the lawyers have reviewed the contract and agreed that it appears fair and balanced, the couple should sign it in front of a notary to ensure it is ready in the event of divorce.
How a South Carolina Family Law Attorney May Be Able to Assist You
Whether you anticipate crazy antics like the Bradys, are worried about protecting your children’s inheritance, or simply want to ensure that you do not lose the assets you have worked so hard for in a divorce, postnuptial agreements can be beneficial for blended families. The flexibility of these marital contracts allows you to create terms specific to your marriage and potential divorce rather than being forced into the box that South Carolina’s divorce laws provide. Considering how unique each blended family is, this flexibility can be crucial. If you would like to discuss creating a postnuptial agreement for your blended family, contact King Law Offices at (888) 748-KING and schedule your appointment to review your legal options.