Believe it or not, our divorce rate has been declining for years. But, before saying “I do”, many people consider whether they should have a prenuptial agreement . . . just in case. It doesn’t always mean they think they are going to get a divorce. They may have family assets or other specific arrangements that need to be protected.
Tabloids often pour over prenuptial agreements made by celebrities, but Huffington Post’s Fred Silberberg gives good reasons “regular people” can benefit from prenuptial agreements as well. Rich or poor, people are executing prenuptial agreements more frequently than ever before.
Prenups tend to become the center of a lot of jokes but in some instances, they serve a very important, legitimate purpose. Here is a good summary and background on what a prenup is and how it works.
What is a Prenuptial Agreement?
In Georgia, a prenuptial agreement is an agreement before marriage that “contemplates a future settlement upon divorce.” In other words, it determines, in advance, how certain property will be separated in the event of a divorce.
What are the Georgia Laws on Prenuptial Agreements?
Georgia has few laws “on the books” concerning prenuptial agreements. They must be specific to the people getting married, must be reasonable and cannot affect the rights of third parties, including creditors. Georgia courts have the authority to enforce, or invalidate, prenuptial agreements based on reasonableness so you can’t say that in the event of divorce, “my spouse gets nothing”.
Creating a “Jam Tight” Prenuptial Agreement
A poorly drafted prenuptial agreement will lead to significant financial and emotional hardship down the line. Therefore, it is extremely important to hire a competent, experienced attorney to draft and witness your prenuptial agreement. Typically, there are three main factors for determining the validity of a prenuptial agreement:
1. Was the agreement obtained by fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts?
These are fairly standard contract defenses, and it is no surprise they are first on the list. Make sure you are 100% honest, upfront, and forthright with both your future spouse and your attorney when drafting your prenuptial agreement to help avoid this pitfall. You and your spouse will want to hire your own separate attorneys. This prevents possible conflict of interest that would force a joint attorney to withdraw, and gives an extra set of eyes for the prenuptial agreement.
2. Is the agreement unconscionable?
Georgia will not enforce unconscionable agreements, and will strike either the entire contract or the unconscionable portions. “Unconscionable agreements” are those “that no promisor with any sense, and not under any delusion, would make, and no honest and fair promisee would accept.” Make sure the paperwork leading to your prenuptial agreement, and perhaps the preamble to the agreement itself, contains enough reasoning, foresight, and documented discussion between you and your future spouse to justify the provisions in the prenuptial agreement from this line of attack.
3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
This criteria is almost entirely out of your control, which likely means litigation if your spouse wants to invalidate the prenuptial agreement. Be sure to have plenty of documentation about the division of labor in your marriage, how the finances were handled, and other fact intensive inquiries you can present at trial. Your attorney will have access to the most current Georgia cases upholding or striking down prenuptial agreements tailored to your situation, but anything you can do to help your own case saves you time, money, and heartache down the road. Always make sure to consult an attorney before touching any joint property or funds when contemplating divorce.
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– Norris Legal, L.L.C.
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