Chapter Fourteen Agreements

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Fourteen AGREEMENTS¹

A. In General

Agreements between spouses who are contemplating divorce receive special treatment in the family court. It is possible to obtain judicial review of not only the validity, but also the fairness and reasonableness, of some agreements at the time they are made and before enforcement of their terms becomes a disputed issue. This opportunity to obtain court approval of private agreements is uncommon in our judicial system.

Public policy considerations related to marriage, divorce, and children may take priority over general contract law. The marital status of the parties when an agreement is made as well as whether they are living together or planning to resume living together may affect the enforceability of agreements.

B. Jurisdiction to Construe and Approve Agreements

1. In General

The family court has jurisdiction to construe and approve relevant agreements in pending marital litigation and in some other situations as well.

The family court has concurrent jurisdiction with the probate court to hear and determine matters related to the interpretation of marital agreements. South Carolina Code Ann. § 63-3-530 and § 62-1-302 were amended in June, 2005, as follows:

Subsections 63-3-530(A)(5) & (7) are now "reserved," and § 63-3-530(B) provides for "concurrent jurisdiction with the probate court" as follows:

Notwithstanding another provision of law, the family court and the probate court have concurrent jurisdiction to hear and determine matters related to paternity, [common law] marriage, and interpretation of marital agreements; except that the concurrent jurisdiction of the probate court extends only to matters dealing with the estate, trust, and guardianship and conservatorship actions before the probate court.

South Carolina Code Ann. § 62-1-302 relating to the jurisdiction of the probate court was amended by adding the following language:

(c) The probate court has jurisdiction to hear and determine issues related to paternity, [common law] marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court, pursuant to Section 20-7-420 [now Section 63-3-530].

Whether the family court has authority to approve agreements depends on a variety of factors. Its jurisdiction to approve agreements is limited to those situations in which it is authorized by statute to do so. Jurisdiction to construe or approve an agreement may depend on whether the agreement is related to marital litigation and whether it deals with property, children, spousal support, or some other issue within the jurisdiction of the family court. The family court's jurisdiction does not extent to actions ex contractu, even if the parties are married, unless specifically authorized by statute. Any action taken by the family court with regard to an agreement over which it lacks subject matter jurisdiction is void.

Once a family court issues an order approving an agreement, the family court has exclusive jurisdiction to modify or enforce the order, unless the court agrees at the request of the parties to divest itself of these powers. Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983).

The family court lacks jurisdiction to enforce or modify agreements that were approved by the family court but retained their separate contractual nature. This can occur in either of two situations:

(1) an agreement retains its separate contractual nature if it was entered into before August 30, 1983 (the date on which Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983) was decided), and the terms of the agreement are (a) silent about post-approval jurisdiction or indicate that the agreement would retain its separate contractual nature and (b) the court order does not clearly provide that the agreement would be enforceable in the family court.
(2) an agreement entered into after August 30, 1983, retains its contractual nature following court approval only if the family court order clearly provides that it will not be enforceable in the family court. Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983).

2. Jurisdiction to Approve Agreements During Marital Litigation

The family court can approve agreements relevant to marital litigation and incorporate them into court orders or decrees. Agreements settling issues in marital litigation must be approved by the family court before they can be incorporated into an order of the family court. The Supreme Court stated in Moseley v. Mosier, 279 S.C. 348, 306 S.E.2d 624 (1983), that

In all decrees entered after their [sic] decision, the parties may contract concerning their property settlement and alimony, but the submitted agreement must be approved by the family court.

Moseley at 352-353, 306 S.E.2d at 626-27.

The family court is required to consider any agreement that is relevant to issues pending before the court, if either party to marital litigation asks the court to consider it, even if one party claims that the agreement is unfair and the other wants it to be upheld. Funderburk v. Funderburk, 286 S.C. 129, 332 S.E.2d 205 (1985) (holding that the family court's authority to consider and approve agreements reached during marital litigation is implicit in S.C. Code Ann. § 63-3-530(2) (2009)). The statute provides that the family court shall have exclusive jurisdiction to hear and determine actions.

For divorce a vinculo matrimonii, separate support and maintenance, legal separation,² and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney's fees, if requested by either party in the pleadings.

3. Jurisdiction to Approve Agreements Independent of Marital Litigation

a. In General

The family court is authorized to consider and approve certain types of agreements whether or not marital litigation is pending. However, the family court's jurisdiction does not extend to actions ex contractu, even if the parties are married, unless specifically authorized by statute. Any actions taken by the family court with regard to agreements over which it lacks subject matter jurisdiction are void. See Swentor v. Swentor, 336 S.C. 472, 520 S.E.2d 330 (Ct. App. 1999); Peterson v. Peterson, 333 S.C. 538, 510 S.E.2d 426 (Ct. App. 1998); Fielden v. Fielden, 274 S.C. 219, 262 S.E.2d 43 (1980); Wilson v. Wilson, 274 S.C. 516, 262 S.E.2d 65 (1980); Zwerling v. Zwerling, 273 S.C. 292, 255 S.E.2d 850 (1979).

b. Child Support or Custody Agreements

The family court can consider and approve agreements related to child custody and support independent of marital litigation, but apparently only when the mother and father have separated or after litigation about custody or support is filed. The family court does not appear to have authority to consider and approve agreements about custody and support between spouses who are living together and who do not disagree about custody or child support.

The family court appears to have jurisdiction to hear independent actions to approve child support and custody agreements after a mother and father separate, even if there is no dispute between them about custody or child support. South Carolina Code Ann. § 20-3-130(G) (1976) provides:

The Family Court may review and approve all agreements which bear on the issue of alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement [sic] where the parties are living separate and apart. The failure to seek a divorce, separate maintenance, or a legal separation³ does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. . . . (emphasis added).

It is not clear whether the statute encompasses agreements for child support in addition to spousal support, and the statute does not mention child custody specifically. The answer turns on whether child support and custody are encompassed within the "issue of . . . separate maintenance and support" which is not defined in the S.C. Code of Laws. The statutory interpretation issue can be avoided altogether, of course, by filing an action for separate support and maintenance in which the only issues presented are child support and custody, then submitting any relevant agreement for approval.

Although such proceedings are rare, the family court is authorized to approve dispositions of child custody that are provided for by parents in "deeds" or in wills and testaments. S.C. Code Ann. § 21-21-25 (1976).

In deciding actions for child support or custody, the family court has the implicit power to consider and approve agreements related to the issues before it. Funderburk v. Funderburk, 286 S.C. 129, 332 S.E.2d 205 (1985).

c. Spousal Support Agreements

Agreements related to spousal support can be considered by the family court even if they are not incident to marital litigation, but only after the parties separate.

The Family Court may review and approve all agreements which bear on the issue of alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement [sic] where the parties are living separate and apart. The failure to seek a divorce, separate maintenance, or a legal separation⁴does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. . . . (emphasis added).

S.C. Code Ann. § 20-3-130(G) (1976).

The statute does not appear to give the family court jurisdiction to consider and approve premarital or marital agreements about spousal support until the parites separate or file marital litigation. It is unlikely that the statute should be interpreted as giving...