Prenuptial Agreements
Protect Your Future with a Legally Sound Prenuptial Agreement
Table of Contents
Frequently Asked Questions About Prenuptial Agreements
Can anyone execute a execute a Prenuptial Agreement?
Yes, any couple can execute a Prenuptial Agreement. It must be executed prior to the date of marriage.
For wealthy individuals, what are some things to consider in a prenuptial agreement to protect myself?
It is always a good idea to ensure that all assets or business interests earned prior to the marriage are always deemed your separate property. This means that all earnings from your assets or business interests would also be deemed nonmarital. Support does not have to be a component of an agreement, but if it is, the parties are free to be as creative as they like. So long as there is full disclosure of earnings, assets and liabilities prior to executing an agreement by both parties, and each spouse has had an opportunity to seek independent counsel prior to executing the agreement, the agreement should withhold any contest.
I executed a Prenuptial Agreement several years ago and waived any interest in alimony or division of assets. Now, my health
No, unless both parties execute an amendment to their prenuptial agreement, you are barred from seeking any modification to your original prenuptial agreement. This situation emphasizes why it is important to seek the advice of legal counsel prior to executing these agreements.
What Is a Prenuptial Agreement?
Let’s face it, not everyone remains married to the same person their entire life. With each marriage and divorce also means division of assets and debt and potentially support obligations. Many people want to enter a new marriage without the threat of their assets being subject to division in the event of divorce, and to protect their biological children as part of an estate plan. They also want certainty in what their support obligations will be.
A Prenuptial Agreement is a solid way to protect your assets in these and other scenarios.
A Prenuptial Agreement is a valid contract between parties that must be executed prior to marriage. It sets forth the rights and obligations of each party financially going into the prospective marriage.
Why Consider a Prenup Before Marriage?
Some good reasons to consider executing a Prenuptial Agreement are: 1) to outline each party’s premarital assets and debts going into the marriage to ensure that the other party has no claim to them; 2) to provide a clean break upon separation or eventual divorce; 3) to avoid protracted litigation in the Family Court and therefore, significant attorney fees and costs; 4) to keep your matters private.
Like most agreements, you can be as creative as you want in how you decide to divide your property or how and when to pay support upon dissolution of your marriage.
Clarifying Financial Expectations
Prenuptial Agreements provide a clear mechanism for both parties to know what property remains their sole property and an easy way to divide jointly acquired property during the marriage. If done correctly, should the parties separate or file divorce proceedings, there will be no contest over division of property or support obligations which means a quick and relatively easy divorce process.
Safeguarding Business Assets
Business assets and earnings can also remain off limits in a properly drafted Prenuptial Agreement. A well drafted Prenuptial Agreement can prevent a spouse from making any claim on earnings or assets from any business, whether acquired before or during the marriage.
Reducing the Risk of Disputes in Divorce
Prenuptial agreements are a way to avoid long, and protracted litigation should you go through divorce proceedings. Upon separation, all that is required is the presentation of the prenuptial agreement to the Court. Absent any challenge to its validity, the Court will accept the Prenuptial Agreement as a bona fide agreement between the parties. This serves to bar the Court from intervening in your affairs.
What Can Be Included in a Prenuptial Agreement?
You can be as creative as you like in a Prenuptial Agreement so long as the requirements are met to enter into a valid agreement. The terms can include the division of assets and debts, support obligations or no support, use of a home, and any other provisions concerning your finances.
However, issues concerning your children or child support cannot be included in a Prenuptial Agreement and will not be considered by the Court if presented.
Who Should Get a Prenuptial Agreement?
Any couple desiring to get married can execute a Prenuptial Agreement. While many people with assets or who have been married previously and have children often consider executing Prenuptial Agreements to protect their assets, the truth is that any couple seeking to get married can execute one.
How Our Lawyers Can Help Draft or Review a Prenup
We have experience in drafting thorough Prenuptial Agreements that can be as simple or as detailed as you desire but also meet legal requirements.
Prenuptial Agreements vs. Postnuptial Agreements
Prenuptial Agreements vs. Postnuptial Agreements vs. Reconciliation Agreements
Prenuptial Agreements are executed in contemplation of the marriage.
Postnuptial Agreements are executed after marriage but require consideration for them to be valid. Consideration means that each party must give up something in exchange for the Postnuptial Agreement to be valid. For instance, a Wife can waive interest in Husband’s retirement in exchange for Husband waiving his interest in Wife’s retirement. Also, a Postnuptial Agreement cannot be executed in contemplation of an imminent divorce or the intent to divorce.
Sometimes couples break up and go through the formal process of having a settlement agreement approved by the Family Court, only to get back together again. While life situations cannot always be clearly defined, Reconciliation Agreements can help.
A Reconciliation Agreement is a useful tool to define your rights upon having executed a Marital Settlement Agreement, only to reunify and resume the marital relationship again.
In these circumstances, even though a Marital Settlement Agreement exists, South Carolina law says that resuming the marital relationship creates new marital obligations to one another, subjecting either party to equitable division, support issues, and the like.
Reconciliation agreements help to define the “new” marital relationship and how the parties are to treat new assets acquired and support issues after reconciliation. Should the parties separate and ultimately move forward with divorce again, they will be able to present their Marital Settlement Agreement and Reconciliation Agreement to the Court to address all issues over which the Court would normally have jurisdiction to handle.
Timing of the Agreement
A Prenuptial Agreement must be executed by both parties and their respective counsel (if hired) prior to marriage. It cannot be executed after marriage. It is important to seek counsel well in advance of your marriage date to avoid time constraints with drafting all necessary documents.
A Postnuptial Agreement must be executed after marriage and not in contemplation of getting a divorce.
A Reconciliation Agreement must be executed after going through a separation.
Legal Enforceability
All that is required in executing a prenuptial agreement is that both parties exchange fully executed financial declarations outlining each of their individual assets, income and debts; that each party is represented by competent counsel or had the opportunity to seek independent counsel prior to executing the agreement; that each party was competent at the time of execution; and that neither party was coerced or under duress in executing the agreement.
It is not enough that one party does not like the agreement later and wishes to retract it. A change of life circumstances between when you execute the Prenuptial Agreement and when you divorce will not override the agreement.
Conversely, Prenuptial Agreements can be challenged if just one of the above listed conditions has not been met. In this circumstance, a hearing is necessary to determine the validity of the agreement at the time of filing of the complaint for recognition of the agreement.
Contesting the validity of a prenuptial agreement requires filing a responsive pleading seeking to invalidate the agreement based upon one or more of the above-mentioned grounds. This may require a hearing before a Judge to determine whether the prenuptial agreement is valid. In such cases, the parties would be required to testify and be subject to cross examination regarding the process involved in executing the document.
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Meet Carrie Warner
My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.