South Carolina: Prenuptial Agreement Requirements

Requirements one by one

South Carolina has no Uniform Premarital Agreement Act

South Carolina uses a narrow Statute of Frauds and property-exclusion statute together with Hardee v. Hardee's case-law enforcement test. The current official code contains no §§ 20-1-910 through 20-1-960 UPAA scheme.

Section 32-3-10 requires an agreement made upon consideration of marriage to be in writing and signed by the party against whom enforcement is sought. For obligations intended to run both ways, each prospective spouse should sign.

Marriage supplies consideration and triggers effectiveness

Holler, relying on South Carolina Loan & Trust Co. v. Lawton, states that marriage itself is the consideration and that the executory agreement becomes effective only upon marriage. The last form the parties adopt before marrying is the agreement supported by that consideration.

No universal notary or witness step applies

The governing writing statute and Hardee line state no notary, acknowledgment, witness, attestation, oath, or general recording requirement. Those steps may supply useful evidence, but the baseline legal form is the signed writing required by § 32-3-10.

Full financial disclosure and separate counsel create the property presumption

Section 20-3-630(A)(4) treats property excluded by written contract as nonmarital. An antenuptial agreement is presumptively fair and equitable when it was voluntary, both parties had separate counsel, and each made full disclosure of income, debts, and assets.

Hardee independently asks whether material facts were misrepresented or not disclosed. South Carolina has no statutory form allowing a party simply to waive disclosure.

Counsel and timing remain fact-sensitive outside the presumption

There is no fixed final-draft or pre-wedding period. Separate counsel is a stated condition for the property-exclusion presumption, but Hardee's general test does not turn the entire agreement on counsel alone.

Holler calls independent legal advice a significant consideration in whether the agreement was made voluntarily and understandingly. It invalidated an agreement on facts involving limited English, no money for a lawyer or translator, immigration and pregnancy pressure, and signing six days before marriage; it did not create a six-day rule.

Hardee supplies both execution and enforcement review

Hardee asks three questions. First, was the agreement obtained through fraud, duress, mistake, misrepresentation, or material nondisclosure? Second, was it unconscionable? Third, did later facts and circumstances change enough to make enforcement unfair and unreasonable?

Holler clarifies that unconscionability itself is measured from facts existing when the agreement was executed. Hardee's third question is the separate enforcement-time second look.

Alimony and fee waivers are permitted but reviewable

Hardee holds that waiving alimony, support, and attorney fees is not automatically unconscionable or against South Carolina public policy. The waiver still must pass all three Hardee questions.

South Carolina has not enacted a fixed public-assistance override. Hardee enforced the waiver despite findings about disability and potential public-charge status because the health decline was foreseeable on that record, while noting that unknown later health problems could produce a different result.

Child support and custody remain court matters

Section 63-15-230 requires the court to make the final custody determination from the child's best interest. Under § 63-17-310, family court retains authority to modify child-support orders when circumstances change.

The parties may state expectations, but a prenup cannot replace those later court determinations.

South Carolina has no prenup-specific amendment statute

The current code does not prescribe a signed-writing formula specifically for amending or revoking a prenup after marriage. A post-marriage change is a separate marital contract whose enforceability must be evaluated in that post-marriage lane.

Family court may review agreements bearing on alimony or separate maintenance under § 20-3-130(G), and § 20-3-690 gives it jurisdiction over property contracts involved in equitable-apportionment litigation.

What trips people up

South Carolina is not an UPAA state. The frequently repeated §§ 20-1-910 to -960 citation is absent from the current official code.

Separate counsel creates a presumption, not a waiting-period rule. Its absence can be important to voluntariness and understanding, but South Carolina has no fixed wedding countdown.

Unconscionability and changed circumstances are separate questions. The former looks at execution; the latter asks whether later enforcement became unfair or unreasonable.

Common questions

Does a South Carolina prenup need notarization or witnesses?

Not under the governing Statute of Frauds or Hardee test. It must be in writing and signed by the party against whom enforcement is sought.

Is separate counsel required?

Separate counsel for both parties is required to receive § 20-3-630(A)(4)'s presumptive fairness for excluded property. Outside that presumption, counsel remains a significant fact in the voluntariness and understanding analysis.

Can the agreement waive alimony?

Yes. Hardee says such a waiver is not automatically invalid, but it remains subject to fraud/duress/disclosure, unconscionability, and changed-circumstances review.

Does the agreement control child custody?

No. The court makes the final custody determination from the child's best interest.

Statutes and sources

• S.C. Code §§ 32-3-10, 20-3-130(G), 20-3-630(A)(4), and 20-3-690. Current official writing, property-presumption, support-agreement, and family-court-jurisdiction provisions. Title 32 chapter 3 and Title 20 chapter 3 (accessed July 28, 2026).
• S.C. Code §§ 63-15-230 and 63-17-310. Court authority over custody and child support. Custody chapter and support chapter (accessed July 28, 2026).
• Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003). Controlling three-part enforceability test and support-waiver rule. Opinion (accessed July 28, 2026).
• Holler v. Holler, 364 S.C. 256, 612 S.E.2d 469 (Ct. App. 2005). Marriage consideration/effectiveness, counsel significance, duress, and execution-time unconscionability. Opinion (accessed July 28, 2026).