Love can be a beautiful thing. It’s a tale as old as time…you meet someone, you date, you fall in love and eventually you get married. One thing you don’t hear about in that fairytale scenario is the possibly-awkward prenuptial conversation. What happens if you are about to marry your significant other and there is a significant difference in assets and financial resources? What if you, or both of you, are business owners? What if you have been married before and were burned by your prior true love? While couples who get married may believe that it will be until “death do us part,” the hard truth is that sometimes it is not always the case. As a Family Law and Divorce Attorney (and just as a regular person, in general), I rarely take the advice of Kanye West, but in this case it is important to remind newly engaged couples that it’s okay to be like Kanye and “Holla, We Want Pre-nups!”
According to the American Psychological Association, in the United States, 45% of marriages end in divorce. For some, a prenuptial agreement can seem like planning for the marriage to fail. However, if done correctly and from a place of love, planning, and mutual respect for the rights and responsibilities of each spouse, a prenuptial agreement can help alleviate any fears or reservations about marriage that either person might have.
What Exactly is a “Pre-nup”?
A “pre-nup” is a contract entered into by prospective spouses before marriage that can have a variety of uses. It can be used to divide assets to include property and debts incurred before or after marriage. Prenuptial agreements can also be used to protect one’s estate, particularly if there are children from a prior marriage. In South Carolina, a prenuptial agreement can also eliminate spousal support; however, a prenuptial agreement cannot address child support or child custody issues.
In order to be legally binding, a prenuptial agreement must be signed by both spouses and must satisfy certain criteria. In South Carolina, in order for a prenuptial agreement to be valid, both parties have to fully disclose their assets and debts, they must accurately describe their finances, the agreement must be reasonable and fair, both parties have to voluntarily sign the agreement, and the terms of the agreement cannot promote divorce.
While these conversations can be tough, having frank, open and honest communication about the state of your finances before marriage is crucial for any couple. Additionally, it is critical to the enforcement of a prenuptial agreement that prospective spouses have a fair understanding of any known assets and that the agreement is not being signed under duress. For example, if a bride is presented a prenuptial agreement on the eve of her wedding, a court may find that the bride did not voluntarily sign the agreement because of the short amount of time between the presentation of the agreement and the actual wedding. Likewise, if a groom is presented with a prenuptial agreement and the soon-to-be bride intentionally did not disclose all of her assets, a court may find the prenuptial agreement invalid due to the lack of full disclosure. It is important to note that while a prenuptial agreement is signed BEFORE your nuptials, a prenuptial agreement is only valid once you are actually married. A prenuptial agreement entered into by prospective spouses who fail to get married is not enforceable.
This is why, if you are presented with a prenuptial agreement, the best course of action is to seek out your own attorney to review and advise you about what is in your best interest. Too often I see couples use the same attorney, or a family friend, to draft and explain the prenuptial agreement. This can result in one party’s interest being advanced over the other. In order to develop a fair and reasonable prenuptial agreement, each spouse should retain their own attorney to advise and negotiate the agreement. Once signed, it is possible for a prenuptial agreement to be modified or revoked, but only upon a mutual agreement by the parties and correct legal procedures.
Although the stereotype around prenuptial agreements can seem largely negative, it is a document that can bring clarity and stability to a relationship. It is a contract, that when correctly executed, not only that openly discusses financial matters that may be critical to your future together but also answers the question in the back of some couples’ minds, “What if we get divorced?”
Love is beautiful and love can be blind, but love does not have to be ignorant of the facts. So, if you have children from a prior relationship, an estate that you earned prior to your marriage, own a business, or are just seeking peace of mind, do not be afraid to holla “WE NEED A PRE-NUP!”