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10 Jun, 2024
Couples who bring significant assets or debts to the marriage or where one or both is earning a substantial income should consider having a prenuptial agreement. Also, where one or both parties expect to inherit significant assets or receive gifts from third parties, a prenuptial should be part of the pre-wedding process. Additionally, couples who marry later in life or who are entering a second or third marriage may bring assets, debts, incomes and children to the new relationship. Protecting their hard earned nonmarital assets and future income is necessary so the individual and their children and grandchildren’s inheritance are protected through a prenuptial agreement. Prenuptial agreements require transparency. Both parties must provide the other with full financial disclosure, and there must be enough time before the wedding to allow the parties to discuss and negotiate the issues. Discussions often even include how the household bills will be paid, what happens to the home when one spouse dies, and the like. A prenuptial agreement also typically addresses whether alimony will be waived or how the payment of alimony is defined in the event of a separation or divorce. A prenuptial agreement can also address situations where one party brings significant debts to the marriage that the other spouse helps pay off during the marriage so the spouse who helps pay off the other’s debts is credited for their contributions upon a divorce or death. What issues are resolved by a Pre-Nuptial Agreement that would help determine whether I might need such an agreement or not? A prenuptial agreement may define which assets remain non-marital despite potential claims of equitable interest by a spouse; whether the parties will waive the receipt of alimony even if at the time of the divorce one party most likely would pay alimony to the other; how assets will be divided upon a parties’ death; whether fault will affect the division of assets and debts; whether parties will be responsible for their own legal fees and costs upon a divorce, and many other issues. The two big issues that prenuptial agreements in South Carolina cannot determine are the custody of children and the amount of child support. Can parties use the same attorney to draft and advise both parties regarding their prenuptial agreement? No . It is unethical for the same attorney to represent both parties regarding a prenuptial agreement. However, as a practical matter, one party’s attorney usually drafts the document, and the other party hires separate legal counsel to review and negotiate any necessary changes. Both attorneys also typically assist the parties in preparing the required disclosure of finances. It is vital that both parties receive independent legal advice in drafting and executing their prenuptial agreement as it alters the normal operation of law and valuable rights are usually waived. It also helps ensure that the agreement will later be found enforceable by the courts. Under what circumstances will a court not enforce a prenuptial agreement? A court may refuse to enforce a prenuptial agreement when the parties have (1) used the same attorney to advise them during the drafting and execution of the agreement; (2) if the parties did not freely, fairly, reasonably or in good faith enter into the prenuptial agreement; (3) if the parties did not give each other full and fair financial disclosure before they entered their agreement; (4) if the agreement was obtained through fraud, duress, mistake or through misrepresentation, overreaching or nondisclosure of material facts; (5) if the was agreement unconscionable meaning that it was so unfair no reasonable person should have agreed to the terms; or (6) if have the facts and circumstances changed so dramatically since the execution of the agreement that it is unfair and unreasonable to enforce it. Some of these factors depend greatly upon the specific circumstances of each case. In 2003, our state Supreme Court upheld the lower court’s denial of alimony to a spouse with diabetes and sponge kidneys who entered into a prenuptial agreement “freely and knowledgeably, with adequate disclosure, and without undue influence or overreaching.” The court was likely persuaded by the fact that wife suffered from those health conditions at the time of the marriage, she had legal counsel when she signed the document, she was advised not to sign the document and her husband provided her with full financial disclosure. In fact, as that case, Hardee v. Hardee , notes, “'[t]he current trend and majority rule allows parties to prospectively contract to limit or eliminate spousal support.'..." Hardee also provides a synopsis of courts’ attitudes toward prenuptial agreements, stating, “In the past two decades ... the courts have reconsidered... public policy in light of societal changes, and today, premarital agreements, so long as they do not promote divorce or otherwise offend public policy, are generally favored as conducive to the welfare of the parties and the marriage relationship as they tend to prevent strife, secure peace, and adjust, settle, and generally dispose of rights in property.” Is it ok to sign a PreNuptial Agreement the day before the wedding? While there is no specific law about how far ahead of a wedding a prenuptial agreement must be signed in order to be “valid,” it is safe to say that two weeks before a wedding is cutting it quite close. The closer to the wedding date, the stronger the argument that one party may later claim they were forced to sign under duress. Entering into a prenuptial agreement is requires competent, experienced legal counsel. Both parties also need time to work through the process thoughtfully and honestly. Do not hire an attorney who pulls forms from a friend or downloads the form from the internet as each case is different, and each couple has their own unique needs. When advised by wise, experienced counsel, especially when significant resources are involved, discuss your circumstances and consider hiring the attorney who is competent to draft a document that protects your needs and is fair to your fiancé.  Melissa Fuller Brown, Esquire, is the President of the South Carolina Chapter of the American Academy of Matrimonial Lawyers, a Board Certified SC Family Law Trial Attorney (Certified by the NBTA), Board Certified SC Family Law Mediator & Advanced Mediator (Certified by AAML), AV Rated by Martindale-Hubbell and chosen as a SC Family Law Super Lawyer. She now works primarily as a family law consultant and mediator in Mount Pleasant, SC.
12 Jul, 2022
In June 2022, The Board of Directors of the American Bar Foundation (ABF) invited Melissa Fuller Brown to become a Fellow in their organization. Fellows of the ABF comprise a global honorary society of lawyers, judges, law faculty, and legal scholars. Membership is by invitation only based upon recommendations of their peers in reliance upon legal careers that demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of our society. Membership is limited to only one percent (1%) of licensed U.S. lawyers and a limited number of international lawyers.
08 Oct, 2021
As of October 15, 2021, Melissa Fuller Brown’s law practice is transitioning to a mediation only practice. From this date forward, she will accept family law mediation matters. Please email her at melissa@melissa-brown.com to schedule a mediation.

ATTORNEY MELISSA F. BROWN

Attorney Melissa F. Brown

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At Melissa F. Brown, LLC, we know that family law cases involving divorce, custody, alimony, equitable distribution, child support, expert fees, legal fees and other matters often cause extreme stress for families regardless of the value of the parties’ marital estate. We also know that family court cases are often uniquely contentious and complex. However, when handled properly, parties are often able to reach settlements that practically and fairly meet their needs and those of their children.

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Where the parties cannot agree on what may be practical or fair, our team brings together experienced litigators, accounting and financial experts, custody experts, and investigators to present the client’s best possible case using the most current technology. Our lawyers are well versed in the unique challenges of high-asset divorces and contested custody cases, and we have the skills, knowledge and experience to resolve your divorce with minimum conflict and maximum efficiency. Let us help you protect your financial future and your children’s best interests.

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The law firm of Melissa F. Brown, LLC is dedicated to securing your post-divorce financial future. Our wealth of legal knowledge and family law experience along with our meticulousness, preparedness and compassion for you and your children allow us to maximize your results and protect your future.



We handle all divorce, custody, and post-divorce-related cases, including:

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We are not afraid to accept the most challenging, complex, divorce, custody, or other family law related cases. Even in the toughest circumstances, we seek to minimize conflict to help clients achieve an amicable, fair, and practical resolution. Nevertheless, we are pro-active and prepare each case as if trial is inevitable. This approach, especially against difficult opposing parties, better enables us to work toward a reasonable, fair resolution and often encourages settlement. However, if trial is necessary, we are zealous advocates having years of family court trial experience.

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To learn more about our South Carolina divorce law firm and how we can help you resolve your divorce or family law problem, please review our firm overview pagee, call us at (843) 722-8900 or contact us online to schedule a consultation. We are happy to help you transition to your new life.

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