CHARLESTON PRE-NUPTIAL AGREEMENT ATTORNEY JAY MCMILLIAN
SHOULD I HAVE A PRE-NUPTIAL SIGNED BEFORE GETTING MARRIED
It is a common misconception that “pre-nups” are only for millionaires and the rich. Nothing could be further from the truth. Do you own any personal property, a home, land, or any other item that you want to protect from any future possibility of being given away through a divorce. Do you have a retirement fund, certain family assets or any collectible items you want to preserve. A properly executed pre-nuptial agreement can accomplish these goals and insure that assets are protected from division by the Family Court.
A pre-nuptial agreement will generally be deemed valid by a South Carolina Family Court if the following conditions are met:
- It is in writing
- Both parties have made a full financial disclosure
- It was signed voluntarily
- Each party is represented by an attorney or had the opportunity to consult an attorney
Pre-nups can be deemed invalid by the Family Court if it is determined that a party was forced to sign under undue influence, if a party did not disclose all material facts, or a party was a minority at the time of signing.
IS IT POSSIBLE TO MAKE AN AGREEMENT WITH A SPOUSE AFTER MARRIAGE
In addition to “pre-nups,” there are also “post nups.” Agreements made between married persons after marriage (but not incident to divorce or a separation) are often the product of a party attempting to protect property or monies earned that may not be incident to the marriage. Post-nuptial agreements are generally held to the same standards of validity stated above for pre-nuptial agreements.
DO I NEED AN ATTORNEY TO WRITE AND REVIEW A PRE-NUPTIAL AGREEMENT
The need for an attorney to negotiate and draft a pre-nuptial or post-nuptial agreement is paramount. First of all, the Family Court judge will probably ask you and the other party whether an attorney was consulted prior to executing the agreement. The Family Court will want you to have a full understanding of the consequences of an agreement, and the Court will not have time to explain it to you nor will they offer you legal advice. Secondly, an attorney will know what specific items can be covered in a pre-marital agreement. For instance, a pre-nup can never establish child support. Furthermore, Family Courts, at the very least, will cast a keen eye on any agreement that attempts to prospectively establish child custody and waive spousal support. I implore upon every prospective client to seek legal counsel in the drafting of any agreement that may affect future marital or property rights.