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Prenuptial Agreements In Georgia
A prenuptial agreement, also known as a premarital or antenuptial agreement is an agreement signed by both engaged parties before a marriage that establishes how property, alimony, spousal support, debt, assets and other financial issues will be resolved in the event of a divorce. These agreements should not include agreements regarding child custody and child support.
A prenuptial agreement can also help in determining how assets will be distributed to children or other family members in the event of a later divorce or death. However, a prenuptial agreement is only enforceable if signed willingly by both parties to the marriage. Both parties must be of sound mind and not under duress when the prenuptial agreement is signed. Both the husband and wife must disclose all of their assets, property and other relevant financial information to the other party for the prenuptial agreement to be valid.
If one or both of the parties do not disclose a specific asset or property he or she owns – and subsequently a divorce is filed, the person who failed to disclose those assets in the prenuptial agreement will likely be required to treat that property as marital property. This would have the result of exposing the property to and equitable division by the court as part of the divorce.
There are other issues that can affect the enforceability of a prenuptial agreement.
The divorce and family law attorneys at Coleman Legal Group, LLC can meet with you about your specific situation if you think you may need a prenuptial agreement. Because the signing of a prenuptial agreement can be a time sensitive process where the spouses may need time to seek independent legal advice – it is always advisable to speak with an attorney as soon as possible when presented with a prenuptial agreement. Furthermore, we strongly advise having an attorney draft and help negotiate the terms of any prenuptial agreement before presenting to your future spouse.
Also, it is important to avoid terms and provisions that the court will likely rule as unenforceable. For example, prenuptial and antenuptial agreements should not contain provisions:
- setting forth child support amounts,
- establishing custody of minor children,
- establishing visitation of minor children,
- stating whether a spouse shall or shall not change their name in the event of a divorce
- stating where parties should or should not live in the event of a divorce
- stating whether parties can or cannot remarry
In summary, most pre- and post-nuptial agreements provisions should focus on the following:
- whether alimony will be paid
- whether infidelity will affect if alimony will be paid
- the amount of alimony to be paid, if any
- whether the parties have to be married a certain length of time for alimony to be paid
- how assets will be divided in the event of a divorce
- how debts will be divided in the event of a divorce
If you are unsure whether a provision can or should be included in a pre- or post-nuptial agreement, this should be discussed early in the process with an experienced divorce and family law attorney.
The following Georgia state laws / statutes govern how pre-nuptial agreements are enforced by Georgia courts:
O.C.G.A. § 19-3-60 (2010). Marriage as Valuable Consideration for Contract: Marriage is sufficient to supply consideration to create a binding contract, but a spouse cannot contract to incapacitate themselves from paying any existing debts.
O.C.G.A. § 19-3-61 (2010). Effect of Minority of Party to Contract: A marital article is not invalidated if the parties to the contract are minors, so long as they are of legal age to marry.
O.C.G.A. § 19-3-62 (2010). Marriage Articles: This section defines the term “marriage articles,” as used in other code sections in the article. Marriage articles is defined to mean any antenuptial agreement between the parties to a marriage contemplating a future settlement upon one spouse. It goes on to explain when marriage articles can be enforced and by whom. It further states that an agreement which needs no future conveyance to effect its purposes, is an executed contract and does not come under this definition.
O.C.G.A. § 19-3-63 (2010). Construction and Attestation of Contract in Contemplation of Marriage: Prenuptial agreements are to be liberally construed to effectuate the intent of the parties. Lack of form or technical expression will not invalidate the contract. Additionally, two witnesses are required.
O.C.G.A. § 19-3-64 (2010). Voluntary Execution of Agreement; trust deeds: Authorizes a spouse to convey property to the other spouse during the marriage, either by marital article, through trustees, or direct conveyance to the spouse.
O.C.G.A. § 19-3-66 (2010). Prenuptial Agreements Executed in Favor of Volunteers: States that marriage contracts are enforced at the instance of all persons in whose favor there are limitations of the estate. “Marriage articles shall be executed only at the instance of the parties to the contract and the offspring of the marriage and their heirs; but, when executed at their instance, the court may execute also in favor of other persons and volunteers.”
O.C.G.A. § 19-3-67 (2010). Record of Marriage Contracts and Voluntary Settlements: Marriage contracts and voluntary settlements made by spouses, regardless of whether made in execution of marriage articles, must be recorded in the office if the clerk of the superior court of the county of the residence of the spouse making the settlement within three months of execution.