When couples get married, they may want to decide ahead of time how they will resolve their financial situation if they divorce. To do this, the couple can enter into a prenuptial agreement, writing down in a contract their wishes on issues such as property division and alimony.
State laws vary on what a prenuptial agreement must include to be enforceable. This article explains Georgia’s definition of a prenuptial agreement, what it can and cannot cover, and what makes the agreement enforceable.
Also called a premarital or antenuptial agreement, a prenuptial agreement is a contract two people enter into before their marriage. Typically, the purpose of a prenuptial agreement is to spell out how the couple will divide property, handle debts, and deal with other financial issues should their marriage end. It can also state the couple's wishes as to how they want to handle these issues during their marriage.
Of course, if you and your future spouse divorce, your property and debts will be divided, and your financial lives will be split, whether or not you have a prenuptial agreement. But if you don't have a prenuptial agreement, state law will decide these issues for you. In a prenuptial agreement, you and your partner can come up with arrangements that suit your unique situation, rather than leaving it up to the state.
While prenuptial agreements are not for everyone, there are several reasons you may want to consider getting one. A common misconception is that prenuptial agreements are only for wealthy people, but anyone who owns assets, has debts, or has children from another marriage may want to consider making a prenuptial agreement.
A prenuptial agreement can help you protect assets you own before the marriage from ending up in your spouse’s hands after a divorce. The agreement may also protect you from having to take on your spouse’s debts. If you are receiving an inheritance, you may want to protect it from being divided during a divorce. If you are planning on giving an inheritance to your children from a prior marriage, you may want to protect it by having a prenuptial agreement.
The main purpose of prenuptial agreement is to allow you to decide how to divide or retain property in the event of a divorce. The agreement may also state whether one spouse will pay the other alimony if the marriage ends.
A prenuptial agreement can help you identify what assets and debts each spouse is bringing to the marriage. Typically, a prenuptial agreement will list what each person owns and owes at the time of the marriage, so there’s no argument about it years later.
The agreement may also determine how the couple will divide property and income that they accumulate during the marriage. For example, you can agree that each spouse will automatically keep the car they drive most often if the marriage ends, or that each spouse will keep their own business interests, retirement accounts, and personal credit card debts.
A prenuptial agreement cannot, however, take away a spouse’s responsibility to pay the debts they have at the date of the marriage itself.
A Georgia prenuptial agreement can never determine child custody or child support. The judge must determine child custody based on what is in the child’s best interest at the time of the custody decision. Similarly, Georgia courts base child support on the parents’ incomes and the child’s reasonable needs at the time child support is ordered. Parents cannot take these decisions out of the judge's hands by including child custody or child support provisions in a prenuptial agreement.
Many states have adopted the Uniform Prenuptial Agreement Act, which explains what your prenuptial agreement must include to be enforceable. However, Georgia is not one of those states.
In Georgia, all prenuptial agreements should be in writing. At least two people must “witness” the signing of the agreement, meaning they must watch both spouses sign the agreement, and then sign it themselves. Either spouse or a spouse’s attorney should then file the agreement in the county superior court clerk’s office where either spouse lives, within three months of the signing date.
Also, as is true of any Georgia contract, both spouses signing the agreement must be competent to enter a contract. This means:
Each spouse should truthfully list his or her assets in the prenuptial agreement, or in an attachment to the agreement. In addition, both spouses must have the time and opportunity to speak with an attorney about the prenuptial agreement before signing. Georgia courts have upheld prenuptial agreements signed only a day or two prior to a wedding, as long as both spouses had the opportunity to speak with an attorney (regardless of whether they took advantage of that opportunity or not).
If spouses who have a prenuptial agreement get divorced, the judge will then decide whether the agreement is enforceable. The agreement can be invalidated (thrown out) if any of the following is true:
In this context, fraud occurs when a spouse lies about facts that are important to the agreement or marriage. Fraud must be significant to invalidate a prenuptial agreement. For example, if a spouse intentionally concealed substantial assets, that might be fraudulent enough to void the agreement. However, one spouse's promise to take care of the other despite the agreement is not enough to constitute fraud.
Similarly, duress can invalidate an agreement, but only when a spouse literally forces the other to sign the agreement by physical threat or serious psychological threat. That a spouse is pregnant at the time the agreement is signed does not constitute duress.
Nondisclosure of material facts can invalidate an agreement; a spouse lying about the amount of assets he or she owned at the time of the agreement may render it unenforceable. A spouse not including his or her income in the prenuptial agreement, however, is not enough to invalidate the agreement.
It is very rare for a court to invalidate a prenuptial agreement because it is unconscionable. So far, the Georgia Supreme Court has not decided any cases on this issue. An agreement is not considered unconscionable just because the spouses will have very different financial situations after the divorce.
Similarly, a court will only invalidate a prenuptial agreement based on a material change in circumstances when the change is extreme. For example, if a spouse suffers a debilitating physical or mental injury and can no longer earn income, a court may decide not to enforce the agreement. The prenuptial agreement won’t be thrown out just because a spouse’s financial situation changed dramatically during the marriage, or one spouse cheated on the other.