Couples remarry each other more often than you might think. Sometimes the divorce was the wake-up call the marriage needed; sometimes life simply circles back. It is one of the happier fact patterns a family lawyer sees — and, quietly, one of the trickiest.

A recent matter in our office involved exactly this: a divorced couple planning to remarry, with a significant financial obligation from their divorce still unpaid, and a prenuptial agreement to build on top of it. The drafting turned up some of the most interesting law we have handled all year. The names and details here are changed or omitted, but the legal points are worth sharing, because almost nobody sees them coming.

1. Remarrying your ex can put parts of your old divorce settlement under a cloud

Here is the question that shapes everything: what happens to the promises in your divorce settlement when you remarry the person you made them with?

South Carolina, like many states, recognizes a doctrine under which reconciliation and remarriage can wipe out the unperformed provisions of a separation agreement. The parts already performed stay done. But a promise not yet carried out — say, a payment that has not yet come due — may be treated as abrogated by the remarriage itself.

Now the unsettling part: whether that doctrine reaches an unperformed property obligation, as opposed to support, is an open question in South Carolina. Our Court of Appeals has been squarely presented with it twice and both times expressly declined to decide it. So if your ex-spouse still owes you money under your divorce decree and you remarry, nobody — no lawyer, no judge, no treatise — can tell you with certainty whether that obligation survives the wedding.

Good drafting does not pretend the question is settled. It says, on the face of the agreement, that both parties knew the law was unsettled and structured around it — and then it actually structures around it, with layers: a contractual covenant, a promissory note, security, and the original decree obligation preserved underneath, so that a bad answer on any one question does not take the rest down with it.

2. No, you cannot just “cancel” the old court order — and you wouldn't want to

A natural instinct in this situation: why not cancel the old divorce order and write a fresh promise into the prenup?

Because you can't, and because you shouldn't. In South Carolina, the property-division terms of a final divorce decree are final by statute — not modifiable except on appeal. The court itself cannot amend them on the parties' joint request, and two private citizens certainly cannot vacate a court order by signing a contract.

What a contract can do is govern how the parties enforce rights against one another: one spouse can covenant not to invoke a provision, promise forbearance, or agree that every dollar paid under the new agreement discharges the old obligation dollar for dollar so nobody ever pays twice. The old order stays untouched; the new agreement layers on top of it.

And here is why the paying spouse should want it that way: the preserved decree is what makes the whole arrangement fair to them. If the prenuptial agreement were ever successfully attacked years later — prenups can be challenged on capacity, disclosure, and fairness grounds — a cancelled decree would leave both spouses litigating from nothing. With the decree preserved, everyone's worst case is known and capped. There is no version of the structure in which either spouse is worse off than the day before signing. That, incidentally, is also what answers the classic consideration attack on prenuptial promises.

3. A promise payable “when someone dies” is legally not a promissory note

This was the most counter-intuitive point in the whole file, and it is pure Uniform Commercial Code.

Suppose one spouse's obligation is meant to be paid out of a future inheritance, and everyone agrees payment should wait until the money actually arrives. The obvious drafting move is a promissory note “payable upon the death of” the relevant family member, or upon receipt of the inheritance. It reads naturally. It is also a trap.

Under the UCC, an instrument only qualifies as a note if it is payable on demand or at a definite time — a fixed date, or a time readily ascertainable when the promise is made. The death of a third person is neither. Write that trigger into the instrument and it silently stops being a promissory note at all. It becomes an ordinary written promise, and the consequences cascade:

Two more traps hide nearby. Putting the promise under seal does not rescue it: South Carolina's twenty-year statute for sealed instruments contains an express carve-out sending sealed notes for the payment of money right back to the three-year period. The seal buys nothing. And a note that says it is “subject to” some other agreement's adjustment mechanism is conditional — also not a note.

The fix is elegant: give the note a fixed outside maturity date years in the future, and make death or receipt of the funds an acceleration event. The UCC expressly preserves a note's definite-time character despite acceleration clauses — and acceleration even restarts the six-year clock from the accelerated date. The paying spouse gets exactly the protection they asked for — nothing due until the money actually arrives — and the receiving spouse keeps six years, the signature presumption, and enforceable security. Nobody gives anything up. The trigger just has to live in the right paragraph.

4. The elective-share surprise

Prenup negotiations often fight hard over the “elective share” — a surviving spouse's statutory right to claim a portion of the deceased spouse's estate. Worth knowing before you spend negotiating capital on it: in South Carolina the elective share reaches the probate estate only. Unlike many states, we have no “augmented estate” that pulls in trusts, beneficiary designations, and payable-on-death accounts. Assets that pass outside probate pass outside the elective share. Depending on how a couple's assets are titled, the right can be worth far less than it sounds — sometimes almost nothing. Negotiate accordingly.

5. What actually makes a prenup hold up

The unglamorous points matter most. In South Carolina, the statutory protection for a prenuptial agreement's property terms requires separate counsel and full financial disclosure — both, not either. A sworn financial declaration from each party, complete and accurate, is not paperwork; it is the foundation. A defective declaration from either side puts the agreement at risk, so a careful lawyer audits the other party's disclosure as closely as their own client's.

And the mechanics of signing deserve real attention:

The takeaway

Remarrying a former spouse is a genuinely hopeful thing. But it is not a clean slate — it is a second agreement built on top of a first one that a court has already blessed, in an area where some of the law remains honestly unsettled. The couples who do it well are the ones who name the open questions, put the answers in layers, and sign everything with the same care they are bringing to the marriage itself.

This article is general information about South Carolina law, not legal advice, and reading it does not create an attorney-client relationship. Details of any matter described have been altered or omitted to protect client confidentiality. If you are considering a prenuptial agreement — with a former spouse or anyone else — speak with a licensed attorney about your specific situation.