Long, long ago, in the ancient year of 1997, a Ukrainian woman named Nataliya was perusing a magazine when she saw a very handsome American man’s photo. His name was William. She thought William was so attractive that she wrote him a letter in English. Nataliya’s English was so-so, but she was constantly practicing it. The pair became pen pals and hit it off immediately. Before they knew it, William flew out to Ukraine to visit her.

Only two months after stepping foot into Ukraine, William and Nataliya became pregnant. William and Nataliya wanted to raise their child in America, but Nataliya could only live in America if she was married to William. Nataliya did not have any money of her own, so she would need to rely on him. Thus, they decided to get married.

William faxed her over a copy of the prenup his lawyer wrote up. This prenup was in English and riddled with the typical legal jargon you would expect. As you can imagine, reading this without a lawyer and without English as a first language was very difficult. Nataliya was hesitant to sign it since she couldn’t understand a thing, nor could she afford her own attorney. William also told her that South Carolina’s laws required her to sign this as it was a requirement for marriage. Reluctantly, Nataliya signed off on the prenup.

Unbeknownst to Nataliya, the prenup actually stated that both she and William had their own money and would be responsible for self-supporting. That was clearly not the case, as she could hardly speak English and had no skills or experience to work in America. She also had a net worth of $0, while he had a net worth of $150,000. In addition, the prenup was not mutually beneficial. It listed many provisions benefitting William but not giving Nataliya similar interests.

After just about two years of marriage, Nataliya filed for divorce seeking distribution of property, child custody, and alimony. If the prenup were to be declared valid, she would not be entitled to any property or alimony. Thus, she asked the court to throw the prenup out. The court agreed with Nataliya and found this prenup unenforceable based on duress and unconscionability.

The court said that this prenup was unconscionable because of the unfair and impossible terms of the prenup. The terms were so one-sided that no fair or reasonable person would sign it. It was clear that she could not support herself and had no assets to support herself.

The court also said the prenup was signed under duress. They noted that she could not understand the English, even with a translator, because it didn’t make sense. She noted in court that she couldn’t translate terms like “pro-rata,” “undivided,” and “equitable.” She also couldn’t stay in the USA without signing the agreement because she needed support from her child’s father. Within context, all these factors together pointed to duress.

Moral of the story? A prenup will only be valid if signed voluntarily, understandingly, and fairly. One foolproof way to make sure this doesn’t happen is to have you both get your own independent legal representation. Having your own attorney to advocate for you will show the court that this was voluntary, and your own attorney will help make the terms fair and not one-sided.

‍Holler v. Holler, 612 S.E.2d 469 (2005)

As opposed to the case of Nataliya and William, this case shows you what is not an unconscionable prenup in South Carolina.

Husband and Wife were married for about nine years when Husband (63 years old) filed for divorce against Wife (41 years old). The prenup they signed stated that Wife would not be entitled to Husband’s property (and vice versa), and Wife would not be entitled to alimony. Wife willingly used Husband’s good friend as her independent legal representation and Husband hired his own attorney.

At the time of divorce, Wife had nothing, but debt and Husband had a significant amount of assets. During the divorce proceedings, Wife argued that the prenup should not be held valid because it was unconscionable. Let’s find out if the court agreed with her…

South Carolina judges use this test to determine if a prenup is valid:

The part of this test at play here is #2: unconscionability. The South Carolina court ultimately decided this prenup was VALID! In other words, not unconscionable. Remember, in South Carolina, unconscionability means one spouse had no meaningful choice, and the agreement is so one-sided that no reasonable person would sign it.

In this case, the court explained that Wife had a meaningful choice to sign the agreement because she could have simply not married him. She also could have hired an attorney that wasn’t Husband’s best friend. The court further declared that the prenup was not so one-sided that a reasonable person would not sign it. Husband and Wife both waived their rights to the other’s property (read: not one-sided). The court reiterated that the whole point of a prenup is to decide how you want to split your assets. This prenup did exactly that.

The lesson to be learned: a prenup in South Carolina can waive your right to alimony and your spouse’s property, even if you end up with much less than your spouse.

‍Hudson v. Hudson, 757 S.E.2d 727 (2014)