How Do Prenuptial Agreements Work
in Georgia?
Georgia honors prenuptial agreements and those prenuptial agreements will be enforced. One consideration is that Georgia 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 the marriage. A prenuptial agreement can set limits on the amount of alimony based on the length of the marriage. A prenuptial agreement can cap or waive alimony before the marriage begins, which is the most common reason clients ask for one. 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.
Prenuptial Agreements in Georgia:
What Will the Court Consider?
The court will consider several factors when deciding whether to enforce a prenuptial agreement.
The court will consider whether the agreement was obtained through fraud, duress or mistake, or through nondisclosure of material facts. The argument most often relied on 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 show more than that the agreement was entered into as a condition of marriage; there must have been actual threats of bodily injury or harm.
Another factor taken into consideration 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 last and most ambiguous factor is whether circumstances have changed since the agreement was entered so as to make enforcement unfair and unreasonable. This does not simply mean that substantially increased wealth invalidates the agreement. The court relies on the concept of reasonably foreseeable changes.
If all assets and properties are disclosed and both parties have general knowledge of the other’s 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. 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.
Consider our Atlanta area law firm to prepare your prenuptial or post-nuptial agreement. In the end, remember you are entering into a contract with the person you are marrying. If the marriage ends, the agreement is applied inside the divorce case itself.
Agreements are drafted and reviewed at a flat fee, quoted before any work begins. Attorney Sean R. Whitworth is here to help. Request a consultation with our Marietta office.
Frequently Asked Questions about Prenuptial Agreements
Yes. Georgia courts enforce prenuptial agreements, but not automatically. A judge reviews the agreement before applying it, and a poorly drafted or unfairly obtained agreement can be set aside.
Three things. Whether the agreement was obtained through fraud, duress, mistake, or nondisclosure of material facts. Whether it was unconscionable. And whether circumstances have changed since signing in a way that would make enforcement unfair and unreasonable.
Nondisclosure. If one party hid assets, income, or debts, the agreement is exposed. The most reliable protection is a full written schedule of assets, income, and liabilities attached to the agreement and signed by both parties.
It does not have to be even. These agreements almost always involve unequal assets, and that alone is not a problem. The standard for unconscionability is far higher: an agreement no rational person acting without delusion would make.
Yes. A prenup can set the amount and the duration of alimony, tie it to the length of the marriage, or waive it. This is one of the strongest reasons to have one, and it is why the agreement should be drafted by someone who handles alimony litigation.
No. Georgia courts decide custody and support based on the best interests of the child at the time of the case. Parents cannot contract away a child’s right to support, and provisions attempting to do so will not be enforced.
It is strongly advised. Independent counsel for each party is one of the clearest ways to defeat a later claim of duress or lack of understanding. One lawyer cannot represent both sides of the agreement.
Well before the wedding. An agreement presented days before the ceremony invites a duress argument. Georgia does not set a bright line waiting period, but the further from the wedding date, the stronger the agreement.
It is the same kind of contract entered after the marriage has already begun. Georgia recognizes them, and the same fairness and disclosure principles apply.
No. Georgia uses equitable division, which means the court divides only marital property and divides it fairly rather than automatically in half. Premarital assets are generally separate, but they can become marital if they are commingled or converted, which is exactly the risk a prenup addresses.
