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Pre- and Postnuptial Agreements in Georgia

Should I have a prenup?

A prenuptial agreement, commonly referred to as a “prenup”, is an agreement that is entered into before a marriage in which the parties agree on how the marital property will be divided in the event of a divorce. Prenuptial agreements have the potential to negatively impact a relationship because the prenup is generally never going to be to the benefit of the lesser party. However, there are some common situations that warrant a prenuptial agreement. These include situations in which:

  • One party is a business owner
  • One party is significantly wealthier than the other
  • One or both parties have children from a previous marriage / relationship
  • One party has already been divorced
  • One party does not plan to work during the marriage

How do I obtain a prenuptial agreement?

A prenuptial agreement should only be drafted by an attorney. A prenup is not filed with the court like other legal, marital documents. After the prenup is drafted, it is signed by the parties and kept until the time it is needed. In the event of a divorce, the attorney appears before the court to ask that the prenuptial agreement be enforced.

Each party signing the agreement should be represented by their own, independent counsel. Prenups are not ironclad. Thus, in the event the prenup must be asserted, the court is more likely to find the agreement to be enforceable if both parties were represented by attorneys at the time of signing.

What is included in a prenuptial agreement?

The prenup should first list a full disclosure of both parties’ assets and liabilities. A prenup can include almost any provision to which both parties agree. Some common provisions are:

  • Alimony (how much and duration)
  • Who keeps personal property (inherited antiques, expensive jewelry, retirement accounts, clothing, photographs, pets, etc.)
  • Agreement to keep separate property separate and anything purchased in a single name during the marriage also remains separate
  • Who keeps shares of a business

Anything relating to child support or child custody cannot be included in a prenup. Issues relating to the children may only be resolved in the best interest of the children at the time of the divorce.

Will the court enforce my prenuptial agreement?

Some states have statutes governing prenuptial agreements. In Georgia, prenups are governed by case law. Scherer v. Scherer, 249 Ga. 635 (1982). A Georgia court will use the Scherer test to analyze three factors to determine whether a prenup is enforceable:

(1) Whether the agreement was made through fraud, duress, or non-disclosure of a material fact. Fraud is established if one party is deceived into signing the agreement. Duress is found if one party is pressured into signing the agreement through the threat of physical, mental, or financial injury. Non-disclosure is typically where party attempts to hide assets from the other.

(2) Whether the agreement was unconscionable. Unconscionability is very difficult to prove. A large disparity between the awards to the parties does not necessarily render a prenuptial agreement unenforceable.

(3) Whether the circumstances of the parties have materially changed so as to make the agreement unfair. Sometimes the financial circumstances of the parties change so much during the course of a marriage that to enforce the prenuptial agreement would be unfair to one or both parties. A party’s wealth may significantly increase or may be totally wiped out between the time the prenup was signed and the time the couple files for divorce. In these cases, it is unfair to hold the parties accountable for unforeseeable circumstances.

Postnuptial Agreements

Postnuptial agreements are largely similar to prenuptial agreements but are entered into after a legal marriage has already occurred. As with a prenup, a postnup typically assigns the marital property to one spouse in the event of a divorce. Although, a postnup may also be used to assign property to someone other than the spouse in the event of the other spouse’s death. In this case, the postnup is basically a waiver of one spouse’s rights to claim certain property if the other spouse dies first. In Georgia, as with a prenup, a postnuptial agreement is enforceable if passes the Scherer test.

Conclusion

In order to insure both prenuptial and postnuptial agreements pass the Scherer test, both parties should be represented by an attorney at the time of signing. At minimum, both parties should be given the opportunity to obtain an attorney even one party elects not to be represented. The court views the party that drafted the agreement as having an advantage over the non-drafting party. The non-drafting party is not likely to garner any benefit from signing so the agreement will be viewed more favorably by the court if both parties were well informed of their rights. Furthermore, the non-drafting party should be given plenty of time to read and consider the document before signing. The signatures of both parties should be witnessed and the document should be notarized at the time of signing. The original copies of the agreement should be kept with the attorneys until the time a divorce proceeding is filed.

If you are in circumstance where you need assistance with a pre or postnuptial agreement, call us at 770-609-1247 to speak with one our experienced divorce attorneys.

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