Can A Prenup Be Thrown Out In South Carolina?
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Frequently Asked Questions
Can I challenge a prenup I already signed in South Carolina
Yes. A signed prenuptial agreement can be challenged in South Carolina, but courts generally enforce valid agreements. To successfully challenge a prenup, you typically must show a legal defect such as fraud, failure to disclose assets, coercion, lack of voluntariness, unconscionability, or another circumstance that affected the agreement’s fairness or validity.
Does a prenup need to be notarized to be enforceable in SC?
No. South Carolina law does not require a prenuptial agreement to be notarized in order to be enforceable. However, notarization is strongly recommended because it helps verify the authenticity of the signatures and can reduce disputes about whether the agreement was properly executed.
What happens if a prenup is found to be unconscionable?
If a court determines that a prenuptial agreement is unconscionable, it may refuse to enforce the agreement or strike specific provisions that are considered unfair. Courts evaluate unconscionability based on the facts and circumstances of the case, including whether the terms are excessively one-sided and whether enforcement would produce an unjust result.
You signed a prenuptial agreement before your wedding—or maybe your spouse is now waving one around during divorce proceedings. Either way, you’re wondering: can a prenup actually be thrown out by a South Carolina court?
The short answer is yes. While South Carolina courts generally favor enforcing valid contracts between consenting adults, prenuptial agreements are not bulletproof. There are several well-established grounds on which a SC court may refuse to enforce a prenup, either partially or entirely.
Understanding these grounds is critical whether you’re drafting a new agreement or preparing to challenge one. For a broader overview of how prenups work in our state, visit our guide to prenuptial agreements in South Carolina.
How SC Courts Evaluate Prenup Enforceability
South Carolina has not adopted the Uniform Premarital Agreement Act (UPAA), so courts rely on case law—most notably Hardee v. Hardee (355 S.C. 382, 585 S.E.2d 501, 2003)—to evaluate prenuptial agreements. Courts apply a two-prong analysis:
- Procedural fairness: Was the agreement created properly
- Substantive fairness: Are the terms of the agreement reasonable?
Both prongs must be satisfied for a prenup to be enforceable. Let’s break down the most common reasons agreements fail each test.
Reason #1: Lack of Full Financial Disclosure
This is the most common ground for invalidating a prenuptial agreement in South Carolina. If either party failed to fully and honestly disclose their finances—including assets, debts, income, and expected inheritances—the entire agreement may be thrown out.
Courts reason that you can’t make an informed decision about waiving your rights if you don’t know what you’re waiving. Even a single undisclosed bank account or undervalued business interest can be enough.
How to protect your agreement: Attach detailed financial schedules to the prenup listing every asset and debt. See our checklist on what to include in a South Carolina prenup for a complete list.
Reason #2: Duress, Coercion, or Undue Influence
A prenup must be signed voluntarily by both parties. If one party can demonstrate that they were pressured, threatened, or coerced into signing, the agreement may be invalidated. Common examples include:
- Signing under a tight deadline. Presenting a prenup the night before the wedding—or even just a few days before—when invitations are sent, deposits are paid, and family has traveled, creates enormous pressure to sign.
- Threats to cancel the wedding. Telling your partner “sign this or the wedding is off” can constitute duress, especially when combined with other pressure tactics.
- Power imbalances. If one party was significantly more sophisticated financially or legally, and the other party had no access to independent advice, courts may find undue influence.
How to protect your agreement: Start the prenup process at least 60 to 90 days before the wedding. Give both parties ample time to review, ask questions, and consult with their own attorneys.
Reason #3: No Independent Legal Counsel
South Carolina law doesn’t strictly require both parties to have their own attorney. However, the absence of independent counsel for one party is a major red flag for courts.
If your spouse signed a prenup without a lawyer—or was not given a reasonable opportunity to consult one—they have a much stronger argument that the agreement wasn’t truly voluntary or that they didn’t understand what they were agreeing to.
How to protect your agreement: Ensure both parties retain separate attorneys. Include a provision in the agreement confirming that both parties were advised to seek independent legal counsel and either did so or knowingly waived that right.
Reason #4: Unconscionability
Even if the process was fair, a court can still throw out a prenup if the terms themselves are unconscionable—meaning grossly unfair to one party. Importantly, South Carolina courts evaluate unconscionability at the time of enforcement, not just when the agreement was signed.
This means an agreement that seemed reasonable 15 years ago could be deemed unconscionable today if circumstances have drastically changed. For example:
- A spouse who waived alimony but has since become disabled and unable to work
- A prenup that leaves one spouse with virtually nothing after a 20-year marriage in which they sacrificed their career to raise children
- Terms so one-sided that no reasonable person in the disadvantaged spouse’s position would have agreed
How to protect your agreement: Build in flexibility. Consider review clauses, escalation provisions tied to the length of the marriage, or sunset clauses. Make sure the agreement is fair—not just technically legal.
Reason #5: Fraud or Misrepresentation
If one party made false statements or deliberately concealed material information to induce the other to sign, the prenup may be voidable due to fraud. This goes beyond mere non-disclosure—it involves active deception.
Examples include:
- Lying about income or net worth
- Concealing the existence of a business or investment account
- Misrepresenting the nature of certain assets
- Forging financial documents attached to the agreement
Reason #6: Improper Execution
South Carolina requires prenuptial agreements to be in writing and signed by both parties. While notarization is not legally required, an agreement that lacks proper signatures—or where signature authenticity is questioned—faces challenges.
Other execution issues include:
- ⦁ The agreement was signed after the marriage (making it a postnuptial agreement, which faces different standards—see our guide on postnuptial vs. prenuptial agreements in SC)
- Material terms were altered after signing without both parties’ consent
- The agreement contains ambiguous or contradictory provisions
Can Only Part of a Prenup Be Thrown Out?
Yes. South Carolina courts have the discretion to sever unenforceable provisions while upholding the rest of the agreement. For example, a court might strike an unconscionable alimony waiver but enforce the property division terms.
This is another reason to include a severability clause in your prenup—a provision that says if any single term is found unenforceable, the remaining terms survive.
Protect Or Challenge A South Carolina Prenuptial Agreement
Whether you need to draft a prenup that will hold up in court or challenge an unfair agreement during a divorce, Warner Law can help. Attorney Carrie Warner understands the nuances of South Carolina prenup law and will fight to protect your interests.
Schedule a consultation with Warner Law today →
Serving clients throughout Columbia, Richland County, Lexington County, and all of South Carolina.
This article is for informational purposes only and does not constitute legal advice. Every family law case is unique. Contact Warner Law to discuss your specific situation.
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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.