South Carolina: C
Statutes
South Carolina Uniform Premarital Agreement Act (1991)
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Unconscionability Dual Review
South Carolina reviews prenuptial agreements for unconscionability both at execution (signing) AND at enforcement (divorce), meaning courts can more easily reject or modify agreements if circumstances change during marriage.
Unconscionability Standard
A prenup is unenforceable if: (1) not executed voluntarily (fraud, duress, lack of meaningful choice); OR (2) “unconscionable” judged at enforcement (divorce); OR (3) both sides did not have independent counsel.
Spousal Support Public Assistance Minimum
Courts may override spousal maintenance waivers if enforcement would make one party eligible for public assistance or leave one spouse impoverished while the other retains significant wealth. Changed circumstances during marriage trigger reassessment at enforcement.
Timing
No minimum specified, but we recommend signing the prenup 60+ days before the wedding, with both parties having 2-3 weeks to review the final version to minimize challenge risk. Reach out to an attorney at least 4-6 months before the wedding with your draft prenup. Better yet, sign the prenup before proposing.
Independent Counsel
Must have legal counsel or waive in writing. Both sides having an attorney dramatically increases enforceability if the agreement is later challenged.
Financial Disclosure
"Full and fair" disclosure of all property, assets, debts, and income required. Complete South Carolina Family Court Financial Disclosure forms listing every asset and debt with corresponding values. For real estate, disclose fair market value AND mortgages. Include source documents (tax returns, statements, appraisals).
Moderate Burden to Challenge
The spouse challenging the prenup bears the burden of proof to show unconscionability, duress, or fraud, or “unconscionability” at enforcement.
Child Support and Custody
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Holler v. Holler, 364 S.C. 256, 612 S.E.2d 469 (Ct. App. 2005)
The Court of Appeals invalidated a prenuptial agreement as unconscionable and signed under duress where a Ukrainian wife with poor English was unable to understand the legal terms, could not afford a translator or attorney, was falsely told the agreement was required for marriage in South Carolina, and had an expiring visa that created pressure to sign.
Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003)
The South Carolina Supreme Court established the three-part test for prenuptial agreement enforceability and held that agreements waiving alimony, support, and attorney's fees are not per se unconscionable, enforcing the alimony waiver despite the wife becoming totally disabled during the marriage because she had meaningful choice, received independent legal advice (though her attorney advised against signing), and the disability was foreseeable.
Hudson v. Hudson, 408 S.C. 76, 757 S.E.2d 727 (Ct. App. 2014)
The Court of Appeals upheld a prenuptial agreement where both spouses waived rights to each other's property and alimony despite the wife having an attorney who was friends with the husband and who merely told her "Husband was a good guy" without discussing details, finding the wife had meaningful choice because she could have chosen not to marry and her financial circumstances at divorce were substantially the same as when she signed.
Gilley v. Gilley, 327 S.C. 8, 488 S.E.2d 310 (1997)
The Supreme Court held that property excluded by a valid prenuptial agreement is nonmarital property outside the family court's jurisdiction, affirming dismissal of the husband's family court action for separate maintenance and equitable distribution where the prenuptial agreement precluded both parties from claiming alimony or equitable apportionment.
Bowen v. Bowen, 352 S.C. 494, 575 S.E.2d 553 (2003)
The Supreme Court and Court of Appeals allowed appeals from family court involving prenuptial agreements without raising jurisdictional issues, establishing precedent that family courts have jurisdiction to determine the validity and enforceability of prenuptial agreements in the course of marital litigation.
Heins v. Heins, 344 S.C. 146, 543 S.E.2d 224 (Ct. App. 2001)
The Court of Appeals addressed procedural issues regarding contempt proceedings and Rule 59(e) motions in the context of enforcing a prenuptial agreement involving a family business, establishing that family courts cannot sua sponte reverse their initial decisions without proper motion practice.
Meehan v. Meehan, 407 S.C. 471, 756 S.E.2d 398 (Ct. App. 2014)
The Court of Appeals determined that a prenuptial agreement stating "the Family Court shall not have jurisdiction over any pre-marital property" only partially limited family court jurisdiction, clarifying that parties cannot completely divest family courts of jurisdiction through prenuptial agreements but can designate property as nonmarital.
McMillan v. McMillan, 417 S.C. 583, 790 S.E.2d 216 (Ct. App. 2016)
The Court of Appeals reversed multiple transmutation findings, establishing strict standards that separate property remains separate unless there is clear intent and commingling of marital funds, holding that the husband's pre-marital business was not transmuted to marital property merely because the wife worked for it (and was fairly compensated) and its income supported the marriage.