Pre-Marital Agreements (also called ante-nuptial or pre-nuptial agreements), are agreements between prospective spouses made in contemplation of marriage. They become effective only upon marriage.
South Carolina Law about Pre-marital Agreements is still somewhat undeveloped. Pre-marital Agreements that identify pre-marital property as the separate property of each spouse are presumptively fair and equitable so long as the Pre-Marital Agreement was voluntarily executed with both parties separately represented by counsel and pursuant to full financial disclosure to each other that is mandated by the Rules of the Family Court as to income, debts and assets. Until recently, alimony and other forms of spousal support could not be waived in a Pre-Marital Agreement. However, based upon recent Court decisions the waiver of alimony in a Pre-Marital Agreement will be upheld if both parties are represented by independent counsel, are fully aware of each others assets, the Agreement is not unconscionable, and it would not be unfair or unreasonable to enforce the contract due to changed circumstances.
Pre-Marital Agreements frequently determine how property will be divided upon divorce, whether the property was acquired prior to marriage or during the marriage. Pre-Marital Agreements sometimes deal with support during the marriage as well as upon divorce. Many couples choose to address issues like what home the parties are to live during the marriage, how expenses will be handled, and the like.
Pre-Marital Agreements can be very complicated and have unforeseen consequences. What might appear fair and reasonable at the beginning of the marriage, might be quite to the contrary at the end of the marriage. Pre-Marital Agreements should always be entered into to with each of the parties represented by separate counsel, only after full and fair financial disclosure, and after sufficient time to consider and weigh the consequences of the Pre-Marital Agreement.
Marital Settlement Agreements
Marital Settlement Agreements are typically entered into by married couples who contemplate that they are to divorce. Marital Settlement Agreements are often negotiated and agreed upon prior to the actual filing of a divorce action, as well as while the case is pending.
Marital Settlement Agreements typically address issues of custody, visitation, child support, alimony, property and debt division, tax matt ers, restraining orders, and attorney fees and costs.
Marital Settlement Agreements should always be reduced to writing and signed by both parties after full and complete financial disclosure, with the assistance of separate counsel representing each of the parties. The Marital Settlement Agreement should then be presented to the Court for Court-approval. If the Agreement is within the bounds of fairness, as determined by the Family Court, the Marital Settlement Agreement will typically be approved and rendered the Order of the Court. Once approved or rendered the Order of the Court, all provisions of the Marital Settlement Agreement will be enforceable by the contempt powers of the Court, which can include the imposition of a jail sentence, fine and other sanctions.
Reconciliation Agreements are typically made in contemplation of resuming the marital relationship during or shortly after a period of separation, perhaps involving marital litigation. South Carolina has a strong public policy in favor of marriage, which translates into a policy to promote reconciliation.
A Reconciliation Agreement that settles marital litigation is a Settlement Agreement. The basic nature of Reconciliation Agreement, however, is more like that of a Pre-Marital Agreement because it generally sets forth terms and conditions of the renewed marital relationship.
Reconciliation Agreements are typically used when spouses wish reconcile after some act of marital fault by one of the spouses. Reconciliation Agreements are then used to set up terms and conditions which will apply to various issues in the event that the prior act of misconduct is repeated. If, for instance, the parties agree upon alimony to be paid if the parties again separate and divorce, and to a division of property, the provisions relating to future support will not bind the Court and only the property division aspects which have been executed ( carried out) will be binding in the next round of divorce litigation.