What Is a South Carolina Prenuptial Agreement?
In South Carolina, a prenuptial, premarital, or antenuptial agreement is a legal document that couples use to outline what is separate property and what is marital property. Marital property includes any assets either spouse acquires during the marriage. The agreement specifies how to handle marital property and debts if they divorce or if one spouse passes away.
South Carolina has unique prenuptial agreement rules because it has not adopted the Uniform Premarital Agreement Act (UPAA). South Carolina is an equitable distribution state, not a community property state. This means courts divide property fairly instead of just splitting it 50/50.
If you are already married, you can create a postnuptial agreement rather than a prenuptial agreement.
How to Write a Prenuptial Agreement in South Carolina
To create a premarital agreement in South Carolina, follow these steps:
- Enter Basic Information: Include names and addresses of both spouses.
- Classify Property: Decide how to handle separate and shared property.
- Identify Businesses: Grant business ownership to one or both parties.
- Decide on Debts: Indicate which debts are personal or shared.
- Describe Housing Arrangements: Choose how to divide the marital home in the event of divorce.
- Add Spousal Support Terms: Decide who, if anyone, will owe the other alimony upon divorce.
- Disclose Financial Information: List all current assets and debts.
- Review and Sign: Add any additional clauses, read over the agreement, then sign.
Use Legal Templates’ free South Carolina prenuptial agreement template to create a valid agreement.
Sample South Carolina Prenuptial Agreement
Below, you can see what a South Carolina prenuptial agreement looks like. When you’re ready, you can customize this template with Legal Templates and then download in PDF or Word format.
Legal Requirements in South Carolina
In South Carolina, you can find the legal rules for premarital agreements in the South Carolina Code of Laws (SC Code) § 20-3 on divorce and § 20-5 on the property rights of married women.
Multiple cases impact the way judges evaluate prenups in South Carolina courts. Here are a few summaries of relevant cases:
- Hardee v. Hardee: The court enforced the prenup in favor of the husband. Even though the wife later became disabled and accused the husband of misconduct, the court found she had freely and knowingly signed the agreement despite her health issues. Under those circumstances, it was not unfair to uphold the prenup.
- Holler v. Holler: The prenuptial agreement was ruled invalid. The wife struggled with English when she signed it. She had no good way to translate the complex legal terms. She also didn’t have her own lawyer. The husband falsely convinced her that the prenup was required for marriage in South Carolina. Plus, she had no assets or support if they divorced and the husband pressured the wife to sign the agreement prior to the expiration of her visa, causing the wife to believe she may be deported if she did not sign.
- Hudson v. Hudson: The wife claimed the prenuptial agreement was unfair. She had debt, but the husband had significant assets when they divorced. The court favored the husband. The wife had her own lawyer and a real choice about signing the document before marriage. This made the agreement fair and willingly signed and, therefore, enforceable.
Signing
A valid South Carolina prenup must not be signed fraudulently, under pressure, by error, or through dishonesty, per SC Code § 20-5-50. While not legally required, notarizing your prenuptial agreement costs a maximum of $10 per signature as of 2025, as per the General Assembly of the State of South Carolina, Bill 3190. This extra step requires you to sign the document in front of a notary, which adds legitimacy to the document.
You and your partner can use a notary acknowledgment form specific to South Carolina to prove your prenuptial agreement’s validity.
Enforceability
Under South Carolina law, prenuptial agreements must meet the following criteria:
- Written
- Fair and equitable
- Signed willingly by both parties
- Contain full disclosures of each party’s property and debts
Additionally, terms cannot be unconscionable or unfair to either party at the time of signing. At the time of enforcement, your or your spouse’s circumstances cannot have changed significantly since you signed the agreement, rendering it unfair.
Financial Disclosure
In South Carolina, you must disclose all income, assets, and debts in your prenuptial agreement, per SC Code § 20-5-50. Otherwise, a court could declare the prenup invalid.
Excluded Terms
In the event of a divorce in South Carolina, courts decide child custody and child support, not the premarital agreement as outlined in SC Code § 20-3-130. A court may invalidate your prenuptial agreement if it has unfair or unreasonable terms. If the terms are too one-sided, that could also lead to the agreement being judged invalid.
Talk to a lawyer about your prenuptial agreement before you sign. This helps make sure it’s valid under South Carolina law.
Attorney Representation
In South Carolina, separate attorney representation is mandatory for a premarital or postnuptial agreement dealing with property to be legally valid, per SC Code § 20-3-630. This means that you and your spouse must have your own lawyers looking out for your individual legal interests throughout the process.
Modifications and Sunset Clauses
In South Carolina, both parties must sign written changes to a premarital agreement in accordance with the legal requirements for the original document. Unless otherwise specified or deemed invalid, prenups last until death or divorce.
You and your spouse may decide to end the agreement early. You can do this in writing or by adding a “sunset” provision to the prenup. This provision makes the agreement end when a certain event happens, like having a child, or after a set time, like a few years of marriage.
