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Postnuptial Agreements in Georgia

Postnuptial Agreement Attorneys GeorgiaPostnuptial agreements are not the first thing most people think about when getting married. It is exciting for a couple to get married – choosing wedding venues, cakes, dresses and bouquet. Marriage, however, is much more than a wedding day or two people living together. It entails serious financial ramifications. So it is important to have conversations about money and even the possibility of divorce, but for many people such conversations can be uncomfortable at best. Nonetheless, it is a good idea to consider the consequences of the marriage and if unfortunate divorce. A couple may take precautions and decide to enter into a prenuptial agreement. Even if the couple have no prenuptial agreement in place, they can sign a postnuptial agreement. Both prenuptial and postnuptial agreements handle financial and legal issues.

Unlike prenuptial agreements, postnuptial agreements are aimed at improving or preserving existing marriages, and there has been a significant increase in the number of couples drafting postnuptial agreements. If you are not familiar with postnuptial agreements, this article can provide a basic understanding of the agreements.

What is the difference between the prenuptial and postnuptial agreement?

A prenuptial agreement, commonly referred to as a “prenup”, is a contract entered into by a couple prior to marriage that sets out how assets or debts will be divided and addresses other matters in the event of divorce or death of one of the spouses. [See O.C.G.A. § 19-3-62]. Prenups can be used to protect one spouse’s assets, to protect one spouse from assuming the debts of the other spouse, to determine how property will be passed upon death, and to clarify financial rights and responsibilities during marriage. So if a couple wishes to protect his or her separate or pre-marital property in the event of divorce, entering into a prenuptial agreement may be their option. In addition addressing property division issues, prenups can also be used to protect children from a prior marriage and to pass one spouse’s property to the children instead of the other spouse.

Similarly, a postnuptial agreement (“postnup”) is also a contract entered into by both spouses that divides the couple’s assets or debts in the case of divorce or death. But the postnuptial agreement is made after a couple has been married. Couples may seek postnups for all of the same reason that a couple would seek a prenup: such as to protect each spouses’ separate property or to agree that neither spouse will be entitled to alimony upon divorce. Additionally, couples may choose to sign a postnup because a prenup was not necessary or not considered before the marriage. As in prenups, postnups can also ensure that some of your assets got to your children from a prior marriage.

How to create a valid postnuptial agreement?

Each state has its own requirements for postnuptial agreements (as well as for prenuptial agreements). Whether a postnuptial agreement will be enforced or not depends largely on what state you live in, so be sure to check your state’s laws or consult with a family law attorney in your state. In Georgia, postnuptial agreements (as well as prenuptial agreements) are enforceable. Courts have broad discretion to enforce all, part, or none of the agreements. [See Spurlin v. Spurlin, 289 Ga. 818 (2011)]. To be valid and enforceable, a Georgia court must analyze the agreement according to the following Three-Question Test before the agreement may be enforced:

  1. Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

[Sanders v. Colwell, 248 Ga. 376 (1981)].

In determining whether a postnuptial agreement is enforceable under the Three-Question Test, courts examine the circumstances of the negotiation process and whether it suggests duress or coercion, whether there has been full disclosure of assets and liabilities, and whether each spouse was represented by his or her own attorney. Under the common law, postnuptial agreements must also be in writing and signed by both spouses.

After examining the circumstances, if the court finds that the answer to all three questions is a “no” and it is in writing signed by the couple, the postnuptial agreement is valid and enforceable. Under the Georgia law, when the validity of a postnup is challenged the spouse seeking to enforce the agreement will has the burden of proof. [Lawrence v. Lawrence, 289 Ga. 309 (2009)]. Note that postnuptial agreements cannot address child custody issues which can only be determined by a divorce agreement or court order.

How to determine if a postnuptial agreement is right for you?

Whether to enter into a postnuptial agreement or not is a very personal decision. You should base your decision on you and your spouse’s unique circumstances. Postnuptial agreements may be most beneficial for a couple who are on the edge of divorce but are willing and able to work out their issues. If you are unfaithful but wants to persuade your spouse to work on the marriage, signing a postnuptial agreement in favor of your spouse can show him or her that you are serious about wanting to stay married. In a postnuptial agreement, you may include conditions such as marriage counseling, future gifts and alimony.

Because postnuptial agreements can offer security, they are growing in popularity. However this does not mean that a postnuptial agreement is right for every couple. So it is important to thoroughly review the pros and cons before you decide to enter into a postnuptial agreement. But these articles are written for educational purposes and it is highly recommended that you consult with an attorney and discuss all of your options. Also, if you have decided to enter into a postnuptial agreement, it is important for each spouse to have an experienced attorney explain the full content of a proposed agreement and the potential consequences upon divorce because a court may decide not to enforce the agreement based on the content or the circumstances at the time of the contract.

Coleman Legal Group, LLC’s Georgia lawyers practice in the areas of Divorce, Family Law, Estates, Wills, Trusts, Probate, Bankruptcy, Business Law and Immigration. We have offices conveniently located at:

Alpharetta Georgia
North Point Park
5755 North Point Parkway
Suite 51
Alpharetta, GA 30022
Phone: 770-609-1247 | Map

Atlanta Georgia
Colony Square
1201 Peachtree Street, 400
Colony Square, Suite 200
Atlanta, GA 30361
Phone: 770-609-1247 | Map

Dunwoody, Sandy Springs
GA 400, Atlanta Georgia
1200 Abernathy Rd
Building 600
Atlanta, GA 30328
Phone: 770-609-1247 | Map

Cumming Georgia
The Avenue Forsyth
410 Peachtree Parkway
Building 400, Suite 4245
Cumming, GA 30041
Phone: 770-609-1247 | Map

Johns Creek, Duluth GA
11555 Medlock Bridge Road
Suite 100
Johns Creek, GA 30097
Phone: 770-609-1247 | Map

Duluth Georgia
2180 Satellite Boulevard
Suite 400
Duluth, GA 30097
Phone: 770-609-1247 | Map

Kennesaw Georgia
TownPark Center
125 TownPark Drive
Suite 300
Kennesaw, GA 30144
Phone: 770-609-1247 | Map

1755 North Brown Road
Suite 200
Lawrenceville, GA 30043
Phone: 770-609-1247 | Map

Our divorce and family law attorneys frequently handle cases for clients residing in the following counties: Fulton, Gwinnett, Forsyth, Cobb, DeKalb, Henry, Cherokee, Douglas, Carroll, Coweta, Paulding, Bartow, Hall, Barrow, Walton, Newton, Rockdale, Henry, Spalding, Fayette, Newton, Walton, Rockdale and Clayton.

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