Validity & Enforceability – Don’t Make These Mistakes in Your South Carolina Prenup

A prenuptial agreement, as I’ve previously discussed, is a legal contract negotiated and executed by two people during their engagement. This type of contract outlines each person’s financial assets and debts, along with their responsibilities and rights during the marriage. The purpose of the document is to clearly define what will happen to their assets and property if the marriage ends should in divorce at some point in the future. While prenuptial agreements are typically thought of as a way to protect a person’s financial and property interests, there are some things that are never enforceable and should not be included in a South Carolina prenup without risking the validity of the entire document.

Anything Related to Child Custody & Child Support

When it comes to prenuptial agreements, South Carolina law is quite clear: Anything that would affect the well-being of any children involved resulting from the marriage – either with both partners and from any previous relationships – cannot be included in a prenup. This includes any provisions related to child support and child custody, as these provisions would directly influence any children born prior to or within the marriage.

Additionally, anything that could potentially cause harm to the well-being of a child is prohibited from being included in a South Carolina prenup; such items might include using drugs or alcohol around the child, changing their living arrangements without appropriate consideration for their safety, security, and/or needs of the child, or any other detrimental actions of the parents that could have potentially negative effects upon them. The inclusion of these clauses would be considered void and unenforceable by law, thus making them invalid.

It may seem a bit odd that couples are allowed to put such detailed agreements in writing about all their finances, property, and personal belongings before they even walk down the aisle, but they aren’t allowed to do the same for any children they may share, but there’s good reason for it. In South Carolina, children’s issues are always modifiable following a review of the current situation by the Family Court, and the overarching concern every time a judge reviews a child’s situation is “What is needed to meet the best interests of the child?”

Unless you and your future spouse have been given access to a working crystal ball (not likely), there’s simply no way for you, or anyone else, to accurately predict what the future holds for you, your spouse, or your children. The variables are simply too innumerable to cover all possibilities to reach a fully informed agreement on how to handle those issues at some point in the future.

Anything Involving or Promoting Criminal or Illegal Activity

Prenuptial agreements also cannot involve any provisions that involve or promote criminal activity, fraud, or forgery. This includes anything related to tax evasion, money laundering, theft, embezzlement, and other illegal activities, among other things. Not only would such clauses be unenforceable by law and invalidate the entire document, but they could lead to legal penalties or repercussions for anyone involved in signing or making such an agreement. Additionally, any provisions that could be interpreted as the promotion of criminal activity are also illegal and cannot be included in a prenuptial agreement in South Carolina.

This is likely the “duh” moment, but having consulted with many couples over the years, some who are coming to the marriage with significant assets they wish to protect from a future divorce, I’ve heard all kinds of creative ideas of how they propose doing so within the language of the agreement. I always assume their creativity is just ignorance of the law and will quickly advise them on how best to accomplish their goals without running afoul of any laws affecting the later enforcement of their agreement.

Anything That Goes Against Public Policy or is Unenforceable by Law

Finally, anything that can or could be considered against public policy or unenforceable by law (even if not strictly “illegal”) cannot be included in a prenuptial agreement in South Carolina. For instance, anything that is considered to be illegal within the state of South Carolina, even if it is legal in other states, would not be allowed in an agreement. Some great examples are provisions dealing with gambling businesses or the division of assets like marijuana plants or other substances that are not allowed for sale or possession within the borders of our state.

Furthermore, any provision that could be interpreted as coercion or duress designed to influence the other person’s decision about signing the prenuptial agreement would also be considered unenforceable by law and invalidate the entire document. This can include any language that is written in a way that may be seen as intimidating or threatening or if the agreement was executed under duress by either party. A great example of this would be if the agreement is drafted very quickly, not allowing for both parties to consult with their own attorneys or to fully review the financial disclosure documents, and the groom threatened to call off the wedding if the bride didn’t sign the document.

Final Thoughts

In conclusion, there are certain things that can never be included in a South Carolina prenup. These include anything that would affect the well-being of any children of the marriage, anything related to child custody or child support, and anything that could potentially cause harm to the well-being of a child. It’s also critical to avoid including any provisions that promote or require illegal activities or might be considered so unfair as to be unenforceable under our state’s laws. The inclusion of these types of clauses would be considered void and not enforceable by the Family Court should a divorce happen in the future, meaning the entire agreement might be found to be invalid.

If you’re considering creating a prenuptial agreement, it’s important to consult with an experienced family law attorney to ensure that everything is done correctly on the front end; that your future spouse also is represented by competent counsel; that the agreement is negotiated and drafted well in advance of the wedding to ensure no one is unduly pressured or under duress when signing the document. Prenuptial agreements can be wonderful tools to ensure your marriage starts off on the right foot so it’s critical to ensure nothing is included or done during the execution of the document that might potentially cause problems with enforcing the agreement down the road.

If you think you may need a prenuptial agreement before you get married, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Your decisions at this stage will need to conform to your state’s laws in order to fully protect your assets and property. If you’re in South Carolina, it’s important to contact an experienced family court attorney like J. Benjamin Stevens today to discuss your specific situation. Even if you aren’t in South Carolina, Mr. Stevens is happy to offer referrals to a well-qualified attorney located in your state.

Ben Stevens has provided exceptional legal counsel and support to families throughout South Carolina for over twenty-five years, handling all matters of family law, such as prenuptial agreements, divorce, separation, alimony, and child custody. Our firm is well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.

Related Articles by Mr. Stevens:

• Pre-Engagement Legal Prep: What You Need to Know
• Understanding Property Division in High-Net-Worth Divorces
• How Do I Protect My Business Interests During a Divorce?