Four couples who did not sign a Premarital Agreement prior to marriage, a Postnuptial Agreement is a practical alternative. These are agreements made between married persons after marriage (but not incident to divorce or a separation) and serve to protect each spouse’s assets. Postnuptial Agreements are generally held to the same standards of validity for Premarital Agreements.
When is it smart to execute a Postnuptial Agreement? While such agreements to not ensure a divorce will go smoothly, many couples consider signing this type of agreement to address property division before problems arise.
A Postnuptial Agreement will generally be deemed valid by a South Carolina family court if the following conditions are met:
- The agreement is in writing;
- Both parties have made a full financial disclosure through sworn financial declarations that are attached to the agreement and that provides the full financial disclosure;
- Both parties signed the agreement voluntarily (meaning free of fraud, duress or mistake);
- The agreement is not unconscionable (meaning not unreasonably one-side); and
- Each party has been represented by independent counsel.
If you are considering a postnuptial agreement, you should consider taking the following actions in advance:
- Document all personal and real property you brought into the marriage, as well as those you have acquired since your marriage, such as jewelry, furniture, real estate, vehicles, and household items;
- Document any gifts you and/or your spouse have received from family and friends;
- List all financial assets you brought into the marriage, or have accumulated after marriage, including stocks, bonds, pensions, investments, annuities, and even frequent flyer miles; and,
- Make note of any purchases you made using one partner’s funds exclusively.
As with a Prenuptial Agreement, it is important to consult a professional attorney who is well-versed in South Carolina law, to ensure that the rights of both spouses are considered and protected.