A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING SECTION 20-1-110 SO AS TO GRANT THE FAMILY COURT SUBJECT MATTER JURISDICTION TO APPROVE CERTAIN PRENUPTIAL AND POSTNUPTIAL AGREEMENTS; TO CREATE A REBUTTABLE PRESUMPTION THAT SUCH COURT-APPROVED AGREEMENTS ARE VALID AND ENFORCEABLE; TO ESTABLISH A PROCESS FOR CHALLENGING THE ENFORCEABILITY OF SUCH AGREEMENTS; AND FOR OTHER PURPOSES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Article 1, Chapter 1, Title 20 of the S.C. Code is amended by adding:

 

    Section 20-1-110.  (A) The family court has jurisdiction to approve any prenuptial agreement or postnuptial agreement, which meets the following criteria:

       (1) The prenuptial agreement or postnuptial agreement must be signed by both parties and their legal counsel.

       (2) Both parties to the prenuptial agreement or post nuptial agreement must be represented by separate legal counsel.

       (3) Before the signing of the prenuptial agreement or postnuptial agreement, each party must provide the other party adequate personal financial disclosures, to include the party's income, assets, debts, liabilities, or any other personal financial information.

       (4)(a) The prenuptial agreement must be provided to both parties at least thirty days before entering into a marriage contract.

           (b) The postnuptial agreement must be provided to both parties at least thirty days before entering into the postnuptial agreement.

       (5) Both parties to the prenuptial agreement or postnuptial agreement are mentally competent and have the capacity to contract, and neither party has signed the prenuptial agreement or postnuptial agreement under duress or coercion of the other party.

       (6) The prenuptial agreement or postnuptial agreement is fair and equitable to both parties, taking into consideration the circumstances and agreement of the parties at the time of the approval of the prenuptial agreement or postnuptial agreement.

    (B)(1) Approval of a prenuptial agreement or postnuptial agreement by a court as having met the requirements of this section creates a rebuttable presumption that the prenuptial agreement or postnuptial agreement is valid and enforceable.

       (2) If a party seeks to invalidate a prenuptial agreement or postnuptial agreement that has been approved by a court pursuant to this section, the party seeking to invalidate the prenuptial agreement or postnuptial agreement must demonstrate, by clear and convincing evidence, that the prenuptial agreement or postnuptial agreement is not valid or enforceable, thereby rebutting the presumption of validity and enforceability.

       (3) A hearing to challenge the validity and enforceability of a prenuptial agreement or postnuptial agreement must be scheduled separately from any proceeding in an action for divorce or separate support and maintenance, and the party against whom the court rules on the challenge to the validity and enforceability of the prenuptial agreement or postnuptial agreement must pay reasonable attorney's fees and costs associated with that hearing.

    (C) For purposes of this section:

       (1) "Prenuptial agreement" means a legal contract between two individuals who intend to marry that affirms, modifies, or waives a marital right or obligation during the marriage or at separation, marital dissolution, death of one of the spouses, or the occurrence or nonoccurrence of any other event, and includes an amendment, signed before the individuals marry, of a prenuptial agreement.

       (2) "Postnuptial agreement" means a legal contract between spouses that outlines how their assets and responsibilities will be managed during the marriage and in the event of separation, marital dissolution, or death, which is created after marriage and serves to clarify financial rights and responsibilities including, but not limited to, ownership of assets, responsibilities for post-marital debts and obligations, terms for dividing property in the event of divorce or death, provisions for gifts and inheritances, and alimony or spousal support.

    (D) This section does not invalidate prenuptial agreements or postnuptial agreements that were entered into prior to the effective date of this section.

 

SECTION 2.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 3.  This act takes effect upon approval by the Governor.

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