A primer on Georgia prenuptial agreements

Whether a premarital agreement is enforceable is determined by a three-prong test.

A prenuptial agreement, also called a premarital or antenuptial agreement, or prenup for short, is a contract between two people who plan to marry in which they can decide before marriage how various matters will be handled after the wedding, usually in case of divorce or of one of their deaths. Usually, prenups are used to predetermine how assets will be distributed, and whether alimony will be paid and how much.

Often antenuptial agreements are used in second marriages to keep pre-existing assets in a spouse's family of origin, rather than going to the second spouse or that person's family. For example, a spouse who is remarrying may want to be sure that his or her assets accumulated during the first marriage go to the children of that marriage if the marriage ends or at death.

Prenups are also commonly seen in marriages where one spouse brings wealth into a marriage and the other does not. Sometimes such a couple will agree to limit how much the less wealthy spouse would receive at divorce or death.

In Georgia, there is a three-prong test that has evolved in case law to determine whether a prenuptial agreement will be upheld as enforceable if challenged in court:

  • Was the premarital agreement the result of fraud, duress or mistake, or were material facts misrepresented or hidden? Specifically, this prong requires full and fair disclosure of each party's assets; free and voluntary signing; and understanding of the prenup's terms after having been offered the option of consulting with an independent attorney.
  • Is the agreement unconscionable? An unconscionable agreement would contain terms that could be described as shockingly unfair.
  • Have the circumstances changed in a way that would make the agreement unfair and unreasonable if enforced? Georgia courts have found that a significant increase in wealth of one party during the marriage to the detriment of the other if a prenuptial agreement is enforced has been found not unfair or unreasonable enough to hold the agreement unenforceable, if the increase in wealth was foreseeable given the large assets or business savvy of the wealthier spouse at the signing of the agreement.

The importance of sound legal advice cannot be overemphasized for a prospective spouse who is either considering drafting a prenup or being approached to sign one by a partner A knowledgeable family lawyer will advise a client about the pros and cons of a particular arrangement and either draft a sound agreement or review one proposed by a prospective spouse.

Legal counsel can also be crucial for any Georgian faced with a premarital agreement at divorce or death. An attorney can review the agreement and the circumstances in light of Georgia's three-prong test for enforceability. Depending on the client's situation and the agreement itself, a lawyer may advocate a position on the enforceability of the prenup.

With seven offices throughout Georgia, the family lawyers at The Manely Firm, P.C., represent clients in all aspects of antenuptial agreements.

Wir sprechen Deutsch - Se habla Español - Nous parlons français - Hие говорим български - 한국어 상담 가능