So You’re Getting Married … Reasons to Consider a Premarital Agreement

They may not be romantic, but premarital agreements (commonly called “prenups”) can offer peace of mind to partners preparing to begin a life together. With people increasingly marrying later in life with more financial independence, premarital agreements are becoming more popular. While in the past they were primarily used by the wealthy, today people of modest means are using them to outline rights and responsibilities in the event of divorce or death of one spouse.

Why would I want a prenup?

Premarital agreements are most common in situations where one partner with considerable assets or earning capacity is marrying a person with significantly fewer assets. An agreement that sets out a plan for future property settlement or alimony can provide the wealthier spouse with financial protection, and at the same time offer some assurance that the marriage is based on love and not money.

Such agreements offer benefits not only to the wealthier spouse, but to the other partner as well. They can provide assurance and protection to the less wealthy spouse, who can get a relatively clear picture of what assets and spousal support to expect should the marriage end.

Premarital agreements can be especially beneficial in second marriages, particularly where there are children from previous relationships. A couple may use an agreement to spell out what will happen to their property when they die so that they can pass separate property to their children. Without a premarital agreement, a surviving spouse may have a right to claim a large portion of the estate, leaving less for the children.

Perhaps the greatest benefit of a premarital agreement is that it can ease the stress of divorce. While such agreements won’t guarantee that a divorce won’t be contentious, they often help. Divorces are painful enough without messy courtroom confrontations.

Will it be enforceable?

In order to be enforceable, South Carolina courts require that the agreement be voluntarily made, in good faith and be fair and equitable. The agreement must be in writing and signed by both parties. To ensure fairness, each partner must make a full financial disclosure to the other when the agreement is made – both parties must be made fully aware of what they are getting and giving up.

Each partner should be advised by his or her own attorney; otherwise, a court is more likely to question the validity of the agreement at some point down the road. Remember, the agreement is often scrutinized several years after it was originally entered into, so it’s important that it is written in a way that is clear, understandable and legally sound.

For more information regarding alternative methods of divorce resolution, please call Clark & Stevens at 843-842-3500.

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