Common Questions about Georgia's Prenuptial Agreements

Georgia law recognizes both pre- and post-nuptial agreements.

By , Attorney

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 will.The most common reason for a prenuptial agreement is to prevent separate property (property that one spouse owned before the marriage) from being divided between the spouses upon divorce.

What is a post-nuptial agreement?

It's basically a prenuptial 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. In addition, people that have been through one divorce are more likely to use a prenup in order to minimize the cost and time of a divorce in the event the next marriage doesn't work out.

Without a valid prenuptial agreement in place, it is possible (in certain circumstances) that separate or premarital property could lose its separate quality and become marital property, which is divided between spouses during divorce.

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. Instead, judges retain the authority to make final custody decisions. Custody must be determined at the time of the dispute (not at the time a prenup is written), because no one can predict all the circumstances which will exist at the time of a custody dispute.

Moreover, spouses cannot pre-determine child support because the law regards child support as a child's right, and the parties to a marriage cannot override that right.

Do both parties need an attorney when preparing a prenuptial agreement?

Yes. It is important for each party to have their own, separate attorney who can explain the proposed agreement and the potential pitfalls in the event of a divorce. An attorney can suggest changes to the proposed prenup 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 part of the original agreement and will reflect the new terms or changes.

Most well-written prenuptial agreements contain a provision that dictates exactly how to cancel the prenup. In addition, some prenups provide for automatic cancellation after an agreed-upon number of years.

Will a prenuptial agreement determine property distribution after death?

Not unless you insist on such a provision, but many attorneys prefer that each spouse express such wishes in a will or trust document.

If you have questions or want to enter into a prenuptial agreement before your marriage, you should contact an experienced family law attorney for help.

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