Prenuptial, or premarital, agreements can be a great planning tool for couples that are getting married. These types of agreements establish the financial rights of each future spouse, protect a family business, secure real estate, and shield personal assets in the unfortunate case of divorce. However, a prenuptial agreement must be done properly in order to be valid under South Carolina law. Here are the top ten reasons why a premarital agreement may be invalidated during a divorce.
The Agreement was Not in Writing
Premarital agreements must be in writing in order to be enforceable in court. Oral agreements are not considered valid in divorce proceedings.
The Agreement was Not Properly Executed
Both parties must sign and date the prenuptial agreement in order for it to be valid. The basic rules of contracts also apply to premarital agreements.
One Party was Under Duress
When one party, typically the future spouse with less money, is pressured into signing a premarital agreement, it is invalid because of undue duress. The duress can come from the other future spouse, family members, or an attorney.
One Party Did Not Read the Agreement
This reason is usually part of a larger trick or scam to get one spouse to sign a premarital agreement without his or her knowledge. Usually, a lawyer or someone else will shove a mountain of paperwork at the future spouse to sign and hide the premarital agreement within the large stack of papers. If the agreement was not read and understood then the signature is not valid.
No Time for Consideration
Each party needs time to think about the agreement before it is signed. If the groom hands the bride a prenuptial agreement right before walking down the aisle there is no time to consider the agreement before signing.
Prenuptial agreements can cover almost every aspect of financial obligations and protect any asset of either spouse. However, these agreements cannot modify or dictate any future child support arrangements in the case of divorce. The premarital agreement also cannot stipulate to anything that is illegal or otherwise violates the law. If an agreement has such clauses, usually the court will discard them and keep the rest of the agreement as valid.
A prenuptial agreement is only valid if both parties fully disclose all relevant information regarding personal wealth and other assets. If one party lies about assets or liabilities the agreement is invalidated.
Providing an incomplete picture of assets and liabilities is as bad as lying about them. If one party withholds information about other bank accounts, assets, or debts, the agreement is invalid.
No Independent Counsel for Parties
Because separate interests are at stake in a premarital agreement, both spouses need independent counsel representing them through the agreement process. If one attorney is representing both spouses, the agreement can be invalidated by the court as a conflict of interest.
While one spouse can agree to give up rights to future assets, alimony, and inheritance in a prenuptial agreement, there is a limit to what is conscionable. If the premarital agreement is so grossly unfair that one spouse would face serious financial hardship while the other benefitted, the court is unlikely to enforce the agreement.
Contact a Charleston Family Law Attorney Today
Prenuptial agreements can provide safety and security in a marriage, but if the agreement is not done properly the results can be disastrous. If you or someone that you know is considering a premarital agreement in the Charleston or greater South Carolina area, let the attorneys at Ayers Family Law, LLC help. Call or contact the office today for a free and confidential consultation.