Can You Challenge or Overturn a Prenuptial Agreement During Divorce?

Yes, you can challenge or overturn a prenuptial agreement during a South Carolina divorce, and courts do set them aside when the agreement was unfair or improperly signed. South Carolina has not adopted the Uniform Premarital Agreement Act, so judges rely on case law, mainly the South Carolina Supreme Court decision in Hardee v. Hardee.

Under that ruling, a prenup can be thrown out if it was obtained through fraud, duress, or nondisclosure, if it is unconscionable, or if circumstances have changed so much that enforcing it would be unfair.

If your spouse is waving a prenuptial agreement at you in a Rock Hill divorce, do not assume you are stuck with it.

How South Carolina Courts Decide If a Prenup Is Valid

Because South Carolina uses case law rather than a statute, family court judges apply the three-part test from Hardee v. Hardee, 585 S.E.2d 501 (2003).

A prenuptial agreement can be declared invalid if any of the following is true:

• It was obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of material facts
• It is unconscionable, meaning so one-sided that no fair person would offer it and no reasonable person would accept it
• Facts and circumstances have changed so much since signing that enforcing it would be unfair and unreasonable

The spouse trying to overturn the agreement carries the burden of proving one of these grounds. That is a real hurdle, but a well-built challenge clears it more often than people expect.

What Are the Strongest Grounds to Challenge a Prenup?

The most common reasons South Carolina courts refuse to enforce a prenuptial agreement include:

1. Incomplete or Hidden Financial Disclosure

Both spouses must lay out their finances honestly before signing. If your spouse hid accounts, lowballed the value of a business or property, or never attached a real financial statement, the agreement can fall apart. South Carolina courts have found that even general awareness of a spouse’s wealth is not enough. Formal written disclosure is expected.

2. Duress or Pressure to Sign

An agreement handed to you days before the wedding, when the venue is booked and guests are arriving, can look like coercion. In Holler v. Holler, a South Carolina appeals court refused to enforce a prenup where the wife was pregnant, could not read the English document, had no independent attorney, and signed under pressure shortly before the wedding. The court found both duress and unconscionability.

3. No Independent Attorney

Each spouse should have their own lawyer. When one spouse had no counsel, or was steered to a lawyer loyal to the other side, that weighs heavily toward invalidating the agreement.

4. Unconscionable Terms

If the terms are grossly lopsided, a court may refuse to enforce them. That said, one-sidedness by itself is not enough. In Hudson v. Hudson, a South Carolina court enforced a lopsided prenup because the wife had independent counsel, was not pressured, and had a genuine choice not to marry.

What a Prenup Cannot Do in South Carolina

Some terms are unenforceable no matter how carefully the agreement was drafted, because they violate public policy. A prenuptial agreement cannot:

• Decide child custody in advance
• Set or waive child support, which the family court determines based on the child’s best interests and state guidelines
• Include anything illegal
• Create a financial reward for getting divorced

South Carolina’s child support and custody rules come from the family court framework in Title 63 of the state code. If your prenup tries to lock in these issues, that part is void even if the rest of the agreement stands.

How Is a Prenup Challenged During Divorce?

The challenge happens inside your divorce case, in family court. In practice, that means:

• Your attorney reviews the agreement and the circumstances around signing
• Discovery uncovers hidden assets, understated values, or missing disclosures
• Your lawyer argues one or more of the Hardee grounds
• The judge decides whether to enforce the agreement, part of it, or none of it

Courts can strike an entire agreement or just the provisions that fail, so even a partial win can reshape how property and support are divided.

Can You Protect a Prenup From Being Challenged?

If you are the spouse who wants the agreement upheld, the same factors work in reverse. Agreements are much harder to overturn when both parties made full written financial disclosure, each had a separate attorney, the document was signed well before the wedding (a 30-day cushion is a common recommendation), and it was notarized. Building those safeguards in from the start is what makes an agreement hold.

Frequently Asked Questions

Is a prenup automatically valid in South Carolina if we both signed it?

No. A signature does not guarantee enforcement. The agreement must still survive the Hardee v. Hardee test for fraud, duress, disclosure, unconscionability, and changed circumstances.

Can a prenup waive alimony in South Carolina?

Yes. The South Carolina Supreme Court held that waiving alimony is not automatically unconscionable or against public policy, as long as the agreement is otherwise valid.

What if my spouse never showed me their real finances?

Nondisclosure of material financial facts is one of the strongest grounds to overturn a prenup. Discovering hidden or understated assets during the divorce can undo the agreement.

How long do I have to challenge a prenup?

The challenge is raised as part of your divorce action, so timing follows your case. The sooner you involve an attorney, the sooner discovery can start building the argument.

Your Next Step If You Are Facing a Prenup in Divorce

A prenuptial agreement can be challenged, but the outcome turns on the details of how it was created and signed. At Okoye Law, our family law team reviews marital agreements and represents spouses in divorce cases across Rock Hill, Fort Mill, and York County. 

Contact Okoye Law for a confidential consultation.