South Carolina prenuptial agreements  (also called antenuptial agreements, or premarital agreements) “will be enforced if made voluntarily and in good faith and if fair and equitable….” Stork v. First Nat’l Bank of South Carolina, 281 S.C. 515 (1984).  Experienced legal counsel can help you protect your assets and  your future with a carefully drafted South Carolina prenuptial agreement.

The South Carolina Supreme Court discussed South Carolina prenuptial agreements in the Hardee v. Hardee case, 355 S.C. 382 (2003).

The test for South Carolina prenuptial agreements:

  • Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts?
  • Is the agreement unconscionable?
  • Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

South Carolina prenuptial agreement invalid in Holler case

The case of Holler v. Holler, 364 S.C. 256 (2005) is an example of a South Carolina prenuptial agreement the Court found invalid and unenforceable.  The family court’s decision was affirmed by the Court of Appeals of South Carolina.   The court decided that the premarital agreement was invalid because it was signed under duress, and also because it was unconscionable.

When the prenuptial agreement was signed, the Ukrainian wife-to-be was pregnant, in the United States, and her visa was about to expire.  She had no means to support herself and no money to retain an attorney or hire a translator.  She did not understand the contents of the agreement even though she attempted to translate it into Russian.  The Husband-to-be told her to sign the agreement if she wanted to be married prior to her visa expiring.   She signed the agreement on November 25th, and the parties married on December 1st, three days before her visa expired.

Duress is a subjective question

Whether or not duress exists depends on the facts of the particular case, including age, sex, and capacity of the party influenced.  It is a subjective test which looks at the individual allegedly influenced — if the victim has a reasonable alternative to succumbing and fails to take advantage of it, there is no duress.   Blejski v. Blejski, 325 S.C. 491 (Ct.App. 1997).

Test for duress in South Carolina agreement

Three things must be shown to prove a South Carolina contract was obtained through duress:

  • coercion
  • putting a person in such fear that he is bereft of the quality of mind essential to the making of a contract; and
  • that the contract was thereby obtained as a rresult of this state of mind.

In re Nightingale’s Estate, 182 S.C. 527, at 547 (1937).

Independent legal advice a significant consideration

The South Carolina court, in invalidating the Holler case prenuptial agreement, noted that one significant consideration in assessing whether a prenuptial agreement was voluntarily and understandingly made is whether a party obtained independent legal advice.

Unconscionability looks to when the contract was entered

The Holler decision says if a contract was unconscionable when it was made, the court may refuse to enforce it.  Like duress, unconscionability is fact specific, and the entire circumstances of the case must be considered.  “Unconscionability is the absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them.”  Holler, at page 269.

Call Hindson & Melton LLC for your South Carolina prenuptial agreement

Our law firm has years of experience with prenuptial agreements.  We can help you determine whether a premarital agreement is helpful or important to your situation.  A South Carolina prenuptial agreement can offer important protection for your assets and your future.   Seek experienced legal advice from Hindson & Melton LLC before you enter into a South Carolina prenuptial agreement.
Karen S. Hindson – July 1, 2012