What is a prenuptial agreement and why do couples get them?
A prenuptial agreement (also known as an “antenuptial agreement" or a "premarital agreement") is a contract entered into by two people who plan to get married. The purpose is to set forth the rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament. The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.
What is a post-nuptial agreement? It is basically a pre-nuptial agreement that is entered into after the couple has married. Georgia law recognizes both pre- and post-nuptial agreements.
Who needs a prenuptial agreement?
Prenuptial Agreements are generally executed by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.
Can a prenuptial agreement cover alimony, child custody, or child support?
Sometimes, prenuptial agreements are used to limit, establish or eliminate alimony in the event of a divorce. Generally, prenuptial agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined at the time of the dispute because no one can predict all the circumstances which will exist at the time of a custody dispute.
Do both parties need an attorney when preparing a prenuptial agreement?
Yes. It is important for each party to have separate counsel explain fully the proposed agreement and the potential pitfalls in the event of a divorce. An attorney can suggest changes to the proposed Agreement that can dramatically affect what happens in the event of a divorce.
Can we change or terminate the prenuptial agreement later?
Yes. You can "re-up the Prenup" by having an attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.
Most well-written prenuptial agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. In addition, some prenups provide for automatic cancellation after an agreed-upon amount of years.
Will a prenuptial agreement determine property distribution after death?
Not unless you insist on such a provision and many attorneys insist that each spouse express such wishes in a will or trust document. Generally, a good prenuptial agreement will contain language that says that either of you are free to give or will away any property you want to the other party.
