Multiple times every year—three times in the past week—I hear from a South Carolina family court litigant who wishes to repudiate an agreement that has been executed but not yet approved by the family court. Such agreements must be reviewed and approved by the family court before they become valid and enforceable court orders. Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983). These potential clients reach out to me with the expectation that the process is easy. However, assuming the agreement meets the formalities South Carolina requires for domestic agreements, it is extremely hard to repudiate an agreement that one party wishes to have made a final order.
The family court’s general obligation to review and approve agreements involves two distinct questions–whether the parties freely and voluntarily entered into the agreement, and whether the substance of the agreement is fair. As to whether an agreement was entered into freely and voluntarily, the family courts will refuse to approve agreements under essentially the same circumstances that would render any other type of contract unenforceable, such as fraud, duress, or mistake. Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct.App. 1999).
On the “fairness” issue the court examines the agreement’s fairness under all the circumstances. If the court determines that a parties’ generosity arose from a desire to quickly get out of the marriage or to atone for past wrongs, the court shall weigh these factors heavily. An agreement shall not be voided as unfair merely because the agreement did not divide the property on the basis of the parties’ relative incomes and contributions to the marriage. All of the relevant factors must be weighed. Funderburk v. Funderburk, 286 S.C. 129, 332 S.E.2d 205 (1985).
Part of the determination of “fairness” is whether the agreement is within the bounds of reasonableness under the facts in that case. To be fair an agreement can differ from how the family court would have resolved the matter. The court presumes that parties who freely and voluntarily enter into an agreement which is procedurally fair, were in a better position than any judge to know whether it is substantively fair. Burnett v. Burnett, 290 S.C. 28, 31, 347 S.E.2d 908, 910 (Ct. App. 1986). In Burnett, the court found an agreement was substantively fair when the wife was advised of her right to consult with an attorney, modified the agreement before signing it, and either knew of or had access to the husband’s financial information before signing the agreement.
