South Carolina
South Carolina Prenuptial Agreement Laws: Hardee Test and 20-3-630
Independently fact-checked against primary sources (last audited October 8, 2026). · 5 primary sources cited on this page. How we verify our legal content
Prenuptial agreements can be enforced in South Carolina, but the state has no uniform premarital agreement act. The rules come from case law, chiefly Hardee v. Hardee, 355 S.C. 382 (2003), plus one statute, S.C. Code 20-3-630(A)(4), which makes an antenuptial agreement "presumptively fair and equitable" when it meets three conditions.
Information last verified on 2026-10-08. This article has not been reviewed by a licensed lawyer.
Jurisdiction scope: This article covers how South Carolina treats prenuptial (antenuptial) agreements under S.C. Code 20-3-630(A)(4) and Hardee v. Hardee, 355 S.C. 382 (2003), with notes on 20-5-50 and the equitable apportionment statutes. It does not cover notarization, waiting periods, child support or custody terms, amendment or revocation, or other states' law. For property division at divorce, see South Carolina divorce laws.
Are prenups enforceable in South Carolina?
Yes, when they pass the tests South Carolina courts apply. South Carolina has not codified a premarital agreement act in Title 20; its chapters cover marriage, divorce, domestic abuse, married women's property rights and a repealed children's code. The governing rules are a case-law test and a statutory presumption.
The statutory presumption: S.C. Code 20-3-630(A)(4)
Section 20-3-630(A) lists the kinds of property that are not marital property. Subsection (4) explains what a written contract of the parties includes:
"includes any antenuptial agreement of the parties which must be considered presumptively fair and equitable so long as it was voluntarily executed with both parties separately represented by counsel and pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets"
The presumption has three conditions, and all three are joined by "and":
| Condition | Statutory wording |
|---|---|
| Voluntary | "voluntarily executed" |
| Separate lawyers | "with both parties separately represented by counsel" |
| Full disclosure | "pursuant to the full financial disclosure to each other that is mandated by the rules of the family court as to income, debts, and assets" |
Here the statute directly favors independent counsel: the presumption applies only when each party had a separate lawyer. If a condition is missing, the statutory presumption does not apply; this page does not cover exactly how a court then weighs the agreement, beyond the Hardee test below.
The Hardee test: when a South Carolina prenup is enforced
In Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003), decided August 11, 2003, the Supreme Court of South Carolina described the test this way:
"The Court of Appeals adopted the following test, to determine whether a prenuptial agreement should be enforced: (1) Was the agreement obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?"
The Supreme Court adopted those factors, applied them, and affirmed enforcement of the agreement in that case. The three questions map to the main ways a South Carolina prenup can be challenged:
- How it was obtained. Fraud, duress, mistake, misrepresentation, or nondisclosure of material facts.
- Its terms. Whether the agreement is unconscionable.
- What happened since. Whether facts and circumstances changed after signing so that enforcement would be unfair and unreasonable.
On the third question, Hardee noted that a different result may follow where a spouse learns of serious health issues only after signing.
Alimony and support waivers
Hardee also addressed waivers directly. The court held that prenuptial agreements waiving alimony, support and attorney's fees are not per se unconscionable, nor contrary to the public policy of South Carolina.
"Not per se unconscionable" means a waiver is not invalid automatically; it is still subject to the three-question test. For how alimony works without an agreement, see South Carolina alimony laws.
Formalities: writing, signatures and 20-5-50
South Carolina's statute of frauds, S.C. Code 32-3-10(3), bars an action on "any agreement made upon consideration of marriage" unless the agreement, or a memorandum of it, is in writing and signed by the party to be charged. This page does not cover whether a notary, witnesses or a waiting period is required. The presumption in 20-3-630(A)(4) refers to a "written contract," so the agreement the statute protects is a written one.
An older provision in the married women's property chapter, S.C. Code 20-5-50, states that "All marriage contracts, deeds and settlements shall therein describe, specify and particularize the real and personal estate thereby intended to be included ... or shall have a schedule thereto annexed." The section's stated consequence for a missing schedule and recording is that the contract is void "with respect to and against creditors and bona fide purchasers or mortgagees." This page does not cover whether or how 20-5-50 applies to a modern prenuptial agreement; a South Carolina lawyer can advise on that question.
Elective share waivers
Under S.C. Code 62-2-204(A), a spouse's rights to an elective share, homestead allowance and exempt property can be waived, wholly or partially, before or after marriage by a written contract, agreement or waiver "voluntarily signed by the waiving party after fair and reasonable disclosures to the waiving party of the other party's property and financial obligations have been given in writing." The code's history notes that this disclosure wording applies to waivers executed after February 4, 2008.
What this page does not cover
Some questions engaged couples ask fall outside the South Carolina sources cited here:
- whether a prenup may limit child support or decide custody;
- how a prenup is amended or revoked after the wedding;
- time limits for enforcing an agreement.
For those, consult a lawyer licensed in South Carolina. A lawyer can also draft or review an agreement, and separate representation is one of the conditions for the 20-3-630(A)(4) presumption.
Postnuptial agreements in South Carolina
South Carolina's property statute is not limited to agreements signed before the wedding. Section 20-3-630(A)(2)(b) refers to the "formal signing of a written property or marital settlement agreement," and 20-3-630(A)(4) speaks of a "written contract of the parties." This page does not cover a postnuptial-specific statute or case.
How South Carolina divides property without a prenup
South Carolina uses equitable apportionment. Under S.C. Code 20-3-610, during the marriage a spouse acquires "a vested special equity and ownership right in the marital property," subject to apportionment by the family court, and under 20-3-620(A) "the court shall make a final equitable apportionment." See South Carolina divorce laws for how that works at divorce.
Disclaimer: This article provides general legal information about prenuptial agreements under South Carolina law, including S.C. Code 20-3-630(A)(4), 20-5-50, 20-3-610 and 20-3-620, and Hardee v. Hardee, 355 S.C. 382 (2003). It is not legal advice. The information was verified on 2026-10-08, and the law can change. For advice about a specific agreement, consult a lawyer licensed in South Carolina.
Related
Last updated: 2026-10-08.
Frequently Asked Questions
Does South Carolina follow the Uniform Premarital Agreement Act?
No premarital agreement act appears in Title 20 of the South Carolina Code. Prenups are judged under case law, chiefly Hardee v. Hardee, 355 S.C. 382 (2003), and the presumption in S.C. Code 20-3-630(A)(4).
Do both parties need a lawyer for a prenup in South Carolina?
Separate counsel is one of three conditions for the presumption that an antenuptial agreement is fair and equitable under S.C. Code 20-3-630(A)(4); the others are voluntary execution and full financial disclosure.
Can a prenup waive alimony in South Carolina?
Hardee v. Hardee held that prenuptial agreements waiving alimony, support and attorney's fees are not per se unconscionable or against South Carolina public policy, though the agreement still faces the court's three-question test.
How can a prenup be challenged in South Carolina?
Under the Hardee test, a court asks whether the agreement was obtained through fraud, duress, mistake, misrepresentation or nondisclosure; whether it is unconscionable; and whether changed circumstances make enforcement unfair and unreasonable.
Is South Carolina a community property state?
No. South Carolina family courts make an equitable apportionment of marital property (S.C. Code 20-3-610 and 20-3-620(A)).
Updates
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
South Carolina Code of Laws, Title 20: DOMESTIC RELATIONS
§ 20-3-630Marital property; nonmarital propertyIn forcecited in 2 of our articles
(A) The term "marital property" as used in this article means all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation as provided in Section 20-3-620 regardless of how legal title is held, except the following, which constitute nonmarital property: (1) property acquired by either party by inheritance, devise, bequest, or gift from a party other than the spouse; (2) property acquired by either party before the marriage and property acquired after the happening of the earliest of: (a) entry of a pendente lite order in a divorce or separate maintenance action; (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties; (3) property acquired by either party in exchange for property described in items (1) and (2) of this section; (4) property excluded by written contract of the parties.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at scstatehouse.gov
Also relied on in: Does South Carolina Allow Legal Separation? Separate Maintenance
§ 20-3-610Spousal equity and ownership rightsIn force
During the marriage a spouse shall acquire, based upon the factors set out in Section 20-3-620, a vested special equity and ownership right in the marital property as defined in Section 20-3-630, which equity and ownership right are subject to apportionment between the spouses by the family courts of this State at the time marital litigation is filed or commenced as provided in Section 20-3-620.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at scstatehouse.gov
§ 20-3-620Apportionment factorsIn forcecited in 2 of our articles
(A) In a proceeding for divorce a vinculo matrimonii or separate support and maintenance, or in a proceeding for disposition of property following a prior decree of dissolution of a marriage by a court which lacked personal jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the property, and in other marital litigation between the parties, the court shall make a final equitable apportionment between the parties of the parties' marital property upon request by either party in the pleadings.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at scstatehouse.gov
§ 20-3-130Award of alimony and other allowancesIn forcecited in 4 of our articles
(A) In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. (B) Alimony and separate maintenance and support awards may be granted pendente lite and permanently in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to: (1) Periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future.
Official text (excerpt) · last checked 2026-09-07 · Read the full text in our law library · Verify at scstatehouse.gov
Cited in 136 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- Rutherford v. Rutherford (Supreme Court of South Carolina 1992, 307 S.C. 199)“…statutory bar of alimony applicable to adulterous spouses. S.C. Code Ann. § 20-3-130 (1985). The trial judge denied the Hus…”
- Doe v. Doe (Court of Appeals of South Carolina 1995, 319 S.C. 151)“…d argues the wife is not entitled to alimony. We disagree. S.C. Code Ann. § 20-3-130 (Supp. 1994) outlines the factors a co…”
- McKinney v. Pedery (Supreme Court of South Carolina 2015, 413 S.C. 475)“…nthia Hamby, and a substantial change of circumstances. See S.C. Code Ann. § 20-3-130(B)(1) (Supp. 2012) (providing that peri…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: South Carolina Alimony Laws: Types, Fault, and Permanent Alimony (2026), South Carolina Divorce Laws (2026): Grounds, Residency, and Process
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Sources and References
- S.C. Code Title 20, Chapter 3 (20-3-610, 20-3-620, 20-3-630)(scstatehouse.gov).gov
- Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003), full opinion (Caselaw Access Project)(static.case.law)
- S.C. Code Title 20, Domestic Relations, chapter list(scstatehouse.gov).gov
- S.C. Code Title 20, Chapter 5, Property Rights of Married Women (20-5-50)(scstatehouse.gov).gov
- S.C. Code Title 32, Chapter 3, Statute of Frauds (32-3-10)(scstatehouse.gov).gov
- S.C. Code Title 62, Article 2 (62-2-204, waiver of elective share)(scstatehouse.gov).gov