Do You Need a Marital Agreement?

South Carolina has detailed laws which determine how property is divided in divorce, as well as what happens when one spouse dies. Fortunately, spouses can reach an agreement on these issues between themselves and reduce it to writing. These writings are marital agreements.

If you sign an agreement before marriage, it is a premarital agreement, commonly called a “prenup.” If you sign the agreement after marriage, the agreement is called a post-marital or post-separation agreement.

The Peck Law Firm has drafted many pre- and post-marital agreements. These are not appropriate for all couples, but you should certainly consider whether one works for you. Contact our Charleston, SC family law attorneys for more information.

Do You Need a Marital Agreement?

Many people wrongly believe that only the rich need marital agreements. In truth, many couples benefit from signing one. The right marital agreement can streamline a divorce and ensure the couple receives the property they were expecting.

Here are some goals you can achieve with a marital agreement:

• Determine how to divide marital property. South Carolina has equitable distribution rules which give judges discretion as to how to divide a couple’s marital assets. With a marital agreement, you can determine which property is “marital” in the first place and then decide how to divide it.
• Divide debts. You might want one spouse to be responsible for a large debt and can use a marital agreement to assign that debt.
• Set alimony. Alimony is a sum of money one spouse pays to another after separation or divorce. You can agree to the amount and duration of alimony in a marital agreement.
• Determine what happens to assets at death. When one spouse dies, South Carolina law grants the surviving spouse a right to an “elective share” of their spouse’s estate. This right overrides whatever is in a will. However, a spouse can waive their right to an elective share in a marital agreement. You can then decide what percentage the surviving spouse will receive.

Marital agreements are common when one or both spouses have children from prior relationships, when one owns a small business, or when they have large assets.

Drafting a Marital Agreement the Right Way

South Carolina judges will enforce a valid marital agreement—even if one spouse later changes his or her mind. The key point, however, is that the marital agreement must be valid. In sum, you can’t procure the agreement by coercion, duress, force, or fraud. The agreement also cannot contain illegal terms.

Our firm can ensure your agreement complies with the law:

• Your agreement should be in writing and signed by both parties.
• Each party should have capacity and understand the agreement.
• Your agreement should not contain any illegal terms, such as attempts to decide child custody or waive child support on behalf of children.
• Each side should fully disclose their financial assets and liabilities before drafting the agreement.
• The agreement shouldn’t be so lopsided that it is unconscionable.
• Each side should have sufficient time to review and possibly negotiate the agreement.

Give Us a Call to Learn More

With the right marital agreement, couples can enter marriage with immediate peace of mind. Let us get started helping you today. Call The Peck Law Firm to schedule a consultation with our team.

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