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Prenuptial Agreement in Greater Atlanta
Georgia does honor prenuptial agreements and they will be enforced. One consideration in Georgia is that this is not a community property state and the court does not consider all assets when deciding the distribution of marital property. The court can only consider those assets accumulated during the marriage and then must consider equitable distribution. However, this can be complicated as there are issues in this consideration such as any changes in these assets that converted them to marital property.
This can happen by combining prior assets with current marriage assets or converting premarital assets, such as a 401K investment, into real estate while married. Because of this it may not be prudent to simply rely on the fact that premarital property is not divisible. There are also considerations of alimony, which will be granted based on the needs of the party seeking alimony, the ability of the individual to pay and the length of marriage. A prenuptial can set limits on the amount of alimony based on the length of marriage. If an individual is entering a marriage with assets of significance it is highly recommended that they prepare a prenuptial agreement to protect and clarify the distribution of these assets in consideration of divorce.
What The Court Considers
When deciding a prenuptial agreement the court will consider three factors.
The first factor the court will consider is whether the agreement was obtained through fraud, duress or mistake, or through nondisclosure of material facts. The most often relied on argument to set aside an agreement is nondisclosure. It is essential when preparing and filing an agreement that all assets are included and it is best to include these as a schedule. Both parties must have knowledge of the income, property and financial assets of the other party and if these items are omitted or hidden it can void the agreement. The arguments of fraud and duress are difficult and the party must not merely show the agreement was entered into as a condition of marriage but there were actual threats of bodily injury or harm.
The second factor is whether the agreement was unconscionable. This does not mean simply unfair as these agreements always deal with disparate assets. To be unconscionable the agreement must be one that “no sane person not acting under a delusion would make…”
The third factor and most ambiguous factor is have the circumstances changed since the agreement was entered so as to make enforcement unfair and unreasonable. This does not simply mean that substantial increased wealth invalidates the agreement. The court relies on the concept of reasonable foreseeable changes. If all assets and properties are disclosed and both parties have a general knowledge of the others income and earning potential it is difficult to claim that a party is entitled to a greater amount because they did not think the other party would be as wealthy as they are; however, on the other hand a party that loses everything may claim that the agreement is unfair or unjust in light of the current economic realities.
In the end, remember you are entering into a contract with the person you are marrying by creating a prenuptial agreement; and any agreement should be prepared with the above factors in mind.