Most people that have been through a difficult divorce will recommend a prenuptial agreement (also referred to as a premarital agreement). No one gets married planning for it to end in divorce; but sometimes even the happiest marriages in the beginning do not always last. Getting married, but concerned about your future after the marriage? Uncertainty about divorce, alimony, assets and debts can be avoided by having a Prenuptial Agreement is in place before the marriage.
What Is a Georgia Prenuptial Agreement?
A Prenuptial Agreement under Georgia Law, is a contractual agreement between two people entered into prior to a marriage. Prenuptial agreement spells out how the property will be divided, how debts will be handled, and discusses other financial issues that may arise should the marriage end. Furthermore, the agreement states couple’s wishes as to how they want to handle other relevant issues concerning the marriage.
Even if the prenuptial agreement is not in place, property and debts will still be divided, and financial lives will still split. However, not having a prenuptial agreement in place gives the state of Georgia discretion in deciding how the property should be divided in the event of divorce. By having a prenuptial agreement in place, you and your spouse can come up with the arrangement that best suits your unique situation, rather than leaving it in the hands of the state.
What if I am Already Married?
In Georgia, if you have already married, you can enter into a Postnuptial Agreement. Postnuptial agreements are very similar to prenuptial agreements, expect they are entered into after the marriage. Otherwise, their requiements, provisions, powers and limitations are very similar. Most experienced divorce and family law attorneys in Georgia can draft prenuptial agreements and postnuptial agreements. However, it is important to use an experienced Georgia divorce and family law attorney.
When to Have a Prenuptial Agreement?
When you get married, you may want to decide ahead of time how you will resolve your financial situation in an event of divorce. A premarital agreement should not be created at the last minute before marriage. It is important to decide all the relevant issues ahead of time, prior to entering into a marriage. A prenuptial agreement should ideally be negotiated, drafted by an attorney, reviewed by an attorney, revised (if needed), signed, witnessed and notarized well before the date of the marriage.
Who Should Get a Prenuptial Agreement?
These days, a common misconception is that a premarital agreement is best suitable for the wealthy people, but generally, anyone who owns significant assets, has debts, or has children from another marriage may want to consider entering into a Prenuptial Agreement.
Why Should You Enter into Premarital Agreement?
A Premarital Agreement can help protect your assets from ending up in your spouse’s hands after a divorce. The premarital 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.
Types of Issues Covered in a Prenuptial Agreement
- Division of property in the event of divorce
- Issues concerning alimony
- Issues concerning support that may not qualify as aliminy
- Who can take tax deductions related to property
- List of what each person owns and owes at the time of the marriage
- How the couple will divide the property accumulated during the marriage
- How the couple will divide the debt accumulated during the marriage
- Whether any separate property (non-marital property) will be divided in the event of a divorce
- How custody of pets and other personal matters will be handled in the event of a divorce
Can a Premarital Agreement Determine Child Custody and Child Support in Georgia?
In the state of Georgia, a Prenuptial Agreement cannot determine child custody or support. The judge is required to determine the child custody issues on the basis of the standard set by the Court, the child’s best interest at the time of the custody decision. Additionally, Georgia courts base child support on the basis of parents’ incomes and child’s reasonable needs at time child support is ordered. Unfortunately in the state of Georgia, parents cannot make decisions in regards to child custody by putting it in the prenuptial agreement.
In Georgia, what Constitutes as an Enforceable Prenuptial Agreement?
In many states, there is a Uniform Prenuptial Agreement Act, which explains what your prenuptial agreement must include to be enforceable. However, Georgia is not one of those states.
Georgia requires all the prenuptial agreements to be in writing. At least two people should “witness” the agreement signing, and both parties are required to sign the agreement as well. After the signing, the parties can inquire with their local superior court about the possibility of filing the singed Prenuptial Agreement with the court. Additionally, at the time of the signing of the premarital agreement, both spouses must be competent enough to enter into a contract.
Competency can be determined by the following factors listed below:
- Age of the spouses, spouses must be at least sixteen (16) years of age. However, age fourteen (14) is appropriate with parental permission.
- Mental Competency of both spouses
- Neither spouse was marred at the time the agreement was made
- No relation among the spouses
Truthful disclosure of all the assets is required. Furthermore, prior to entering into a prenuptial agreement, both spouses should have the time and the opportunity to speak with an attorney about the prenuptial agreement. In the past, Georgia courts have upheld premarital agreements signed a day or two prior to a wedding, as long as both spouses had opportunity to speak with their attorney, prior to signing the premarital agreement. However, it is generally recommended that the parties take at least fourteen (14) days to consider the agreement before signing it, and have an attorney review the agreement with them.
When Will a Premarital Agreement be Unenforceable?
- Agreement obtained through fraud and duress.
- Misrepresentation of the facts or failure to disclose material facts.
- An unconscionable agreement
- Change in circumstances since the making of the agreement
What are the Specific Georgia Law Regarding Prenuptial Agreements?
The state of Georgia has several statutes governing prenuptial agreements. Below is a list of the most cited:
- O.C.G.A. § 19-3-60: 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: 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: 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: 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: Voluntary Execution of Agreement; trust deeds. This section allows 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: 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: 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.
Getting into a prenuptial agreement is not simply preparing for the worst-case scenario. It is preparing ahead of time about things that matter the most to you. It is very important to consult with an experienced Georgia divorce and family law attorney today if you are interested in entering into a premarital agreement.
This article is written below for informational purposes, and provides a brief understanding about entering into a premarital agreement. As always, it is you are advised to consult with a local and experienced divorce and family law attorney. Call us today at 770-609-1247 to speak with one of our experienced and caring attorneys. Contact >>