I have long thought that reconciliation agreements (also called postnuptial agreements) were of questionable validity. In prenuptial agreements, unmarried parties intend to enter an agreement regarding their marriage before they marry. “The consideration for a premarital agreement is the marriage itself.” Holler v. Holler, 364 S.C. 256, 264, 612 S.E.2d 469, 474 (Ct. App. 2005). In a separation agreement, married parties intend to end their marital relationship, and the agreement is intended to address their rights and obligations when the marital relationship ends.
However, a reconciliation agreement simply intends to resume or continue an already existing marital relationship. Such agreements are intended to address the spouses’ rights and obligations if they subsequently separate or if one spouse dies. It is unclear what “consideration” is received or provided in a reconciliation agreement. Is continuing a marital relationship that one might otherwise end “consideration”? As South Carolina appellate courts have never been asked to address this question, I find it unclear whether reconciliation agreements are valid.
While no case law addresses it, reconciliation agreements regarding minor children’s custody, visitation, and support are almost certainly not enforceable. In Singh v. Singh, 434 S.C. 223, 230, 863 S.E.2d 330, 334 (2021), the South Carolina Supreme Court held that children’s issues could not be resolved through arbitration. It cited the case of Moseley v. Mosier, 279 S.C. 348, 351, 306 S.E.2d 624, 626 (1983), which held “that family courts have continuing jurisdiction to do whatever is in the best interests of the child regardless of what the separation agreement specifies.” Given this case law, it is implausible that the family court’s would enforce a reconciliation agreement regarding minor children over one party’s objection.
It would appear that division of assets and debts can be addressed in a reconciliation agreement. S.C. Code § 20-3-630(A)(4) excludes from marital property, “property excluded by written contract of the parties.” That subsection further clarifies “‘Written contract’ 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.”
This clarification implies that written contracts to exclude marital property are more inclusive than prenuptial agreements. This language would appear to make a reconciliation agreement addressing spouses’ assets and debts enforceable. So far, no reported cases interpret S.C. Code § 20-3-630(A)(4) outside of the prenuptial agreement context. However, it appears reconciliation agreements might be able to address the division of assets and debts and remove them from the family court’s jurisdiction to equitably divide them.
There is some reason to believe South Carolina would enforce reconciliation agreements addressing spousal support, but there is no definitive answer. The case of Towles v. Towles, 256 S.C. 307, 312, 182 S.E.2d 53, 55 (1971), addressed this exact issue and refused to enforce a post-nuptial agreement waiving alimony, holding “the agreement by the wife that she would never bring an action against her husband again, as a condition of the resumption of the marriage relationship, is against public policy and therefore void.” However, this holding was explicitly overruled by Hardee v. Hardee, 355 S.C. 382, 388, n. 3, 585 S.E.2d 501, 504, n. 3 (2003), “in light of its outdated views concerning women.”
However, Hardee, distinguished Towles by noting “Towles involved a reconciliation agreement entered into subsequent to the marriage; it is therefore distinguishable from the present case.” Hardee 355 S.C. at 388, n. 3, 585 S.E.2d at 504, n. 3. Thus, Hardee is unclear authority for enforcing a reconciliation agreement waiving alimony. The question of consideration looms over whether South Carolina courts would enforce a reconciliation agreement waiving alimony.
My best answer to what can be addressed in a reconciliation agreement: minor children’s issues, no; property division, very likely; alimony, likely but uncertain.
