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Prenuptial Agreements in Georgia

Prenuptial Agreement Attorneys GeorgiaA prenuptial agreement (aka prenup) may be the last thing any couple wants to think about when they are about to get married. There is nothing romantic about discussing each other’s finances and signing a legal contract. Also for many people, money is an uneasy topic to talk about – let alone signing a legally binding contract on such issues. It is uncomfortable at best to have honest conversations before the wedding about the financial and legal issues.

Nonetheless, it is important for the couple to talk frankly about each other’s financial reality, financial expectations and whether to combine finances or keep separate before they get married. You may also consider making financial matters official with a contract and draft a prenup which can protect you and your assets. A prenup may seem unromantic, but it may be an appropriate option for you. Below provides a background information you should be aware of before you make your final decision whether or not to sign a prenuptial agreement.

What is a prenuptial agreement in Georgia?

A prenuptial agreement, also referred to as an antenuptial agreement or a prenup, is a contract a couple enter into before the marriage. The purpose of the agreement is to set forth the rights and obligations for each party during the marriage and upon divorce. The most common reason for making a prenup is to prevent separate property that each spouse owned before the marriage being included as marital property and divided between the spouses in the event of a divorce. But a prenup can also state the couple’s wishes as to how they want to handle financial issues during their marriage. The Georgia statute authorizing premarital and prenuptial agreements, and outlining their enforcement by Georgia divorce courts is O.C.G.A. § 19-3-60 (2016).

Whether or not you have a prenuptial agreement, your property and debts will be divided upon divorce. Without a prenup, however, the court will decided these issues for you. With a prenup, you and your spouse can arrange these financial issues based on you and your spouse’s unique. situation.

Who needs a Georgia prenuptial agreement?

While prenuptial agreements are not for everyone, it is a common misconception that prenups are only for wealthy people. Prenups are generally executed by wealthy people because they have considerable assets prior to the marriage and want to keep those assets separate. However, anyone who owns assets may want to consider getting a prenup because it will allow you and your spouse to come up with arrangements that suit your unique situation rather than leaving it up to the state law.

There are also other reasons why you may want to consider making a prenup. If your spouse has debts or you have children from your earlier marriage, a prenuptial agreement may be a right option for you. A prenup can protect you from having to take on your spouse’s debts. Also, if you are planning on giving your property to your children from a prior marriage, you can make sure that your children receive a share of your property through a prenup. In other circumstances, if you have been through one divorce, you may want to use a prenup to minimize the cost and time of a divorce in the event that the next marriage does not work out

What issues can a Georgia prenuptial agreement cover?

You can cover following issues: keeping finances separate, specifying certain property to be kept in your birth family, defining how your property will be divided upon divorce. You can also clarify in a prenup you and your spouse’s responsibilities during the marriage or after the divorce (such as alimony).

A prenup, however, cannot determine or restrict child custody or support, or visitation rights. Two people cannot limit or give up future child support, or limit future custody and visitation rights. Such issues can not be pre-determined and must be decided by a divorce agreement or by the court at the time of the dispute (not at the time a prenup is written). Also making rules about non-financial matter cannot be included in a prenup. For instance, you cannot decide who will be responsible for household chores, nor agree to use your last name after the marriage through a prenup.

When will a Georgia divorce court enforce or refuse to enforce a prenuptial agreement?

If you and your spouse have a prenuptial agreement and want to get divorced, the court will decide whether the agreement is enforceable. In Georgia, all prenups must be in writing signed by both spouses in front of at least two witnesses. Under Georgia law, courts will invalidate a prenup if the answer to any of the following questions is yes:

  1. Was the prenuptial 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 (and were any changes in circumstances foreseeable)

Georgia Prenuptial Agreements: No Fraud or Duress

Courts can invalidate a prenup based on the fact that the prenup was executed under fraud and duress. The court will consider circumstances under which the prenup was signed such as the timing between the negotiation and execution of the agreement, or whether each spouse had the opportunity to retain an independent and separate attorney. Also, the court may invalidate the prenup if one spouse does not fully disclose all of his or her assets, properties, and debts. Third, a prenup may be invalidated if it is deemed to be unconscionable. If its terms are so one-sided that it leaves one spouse virtually penniless after divorce, the court probably would not enforce the prenup. Lastly, the court may invalidate a prenup based on a material change in circumstances when the change is extreme. However, the court will not void the agreement just because a spouse’s financial situation changed dramatically during the marriage or one spouse cheated on the other.
Can the prenuptial agreement be changed or terminated later?

Revising a Georgia Prenuptial Agreement

Prenuptial agreements can be changed with the help of a divorce attorney. After the new terms have been properly signed and witnessed, it becomes part of the original agreement and will reflect the changes that you have made. Also, most prenups can be cancelled according to the terms of the prenup. Most well-drafted prenuptial agreements contain a cancellation provision specifying the terms and conditions for cancellation.

It is true that everyone wants their marriage to last. It is also true that prenuptial agreements are not for everyone. However, writing a prenup may be a necessary step for you to take if unfortunately divorce does happen. It may seem unromantic, but can protect your assets, you from your spouses’ debts, or your children from your previous marriage. If you are getting married and consider making a prenup, be sure to consult with a qualified divorce lawyer to draft a fair, legally binding and enforceable prenup.

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.

Copyright © 2020 | Coleman Legal Group, LLC | All Rights Reserved. Coleman Legal Group, LLC • 5755 North Point Parkway, Suite 51 • Alpharetta, GA 30022 • 770-609-1247 DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.