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An ante-nuptial agreement, commonly referred to as a prenuptial agreement or “prenup,” is a contract entered into by a couple prior to marriage that divides the couple’s assets in case of divorce. See generally O.C.G.A. § 19-3-62. Many people associate prenuptial agreements with those who are very wealthy or famous, but anyone who wishes to protect his or her separate or pre-marital property in the event of divorce should consider entering into a prenuptial agreement prior to marriage. Prenuptial agreements are enforceable under Georgia law. Scherer v. Scherer, 249 Ga. 635 (1982). If a party enters into a prenuptial agreement, it is very likely that upon divorce, the presiding court will approve the agreement and incorporate it into the parties final divorce decree. However, the court has wide discretion in this area and may refuse to enforce the parties’ prenuptial agreement depending upon the court’s analysis of the agreement according to the following criteria:
- Was the agreement obtained through fraud, duress, or mistake or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable?
- Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?
See Mallen v. Mallen, 280 Ga. 43 (2005); Alexander v. Alexander, 279 Ga. 116 (2005); Blige v. Blige, 283 Ga. 65 (2008); Gravley v. Gravley, 278 Ga. 897 (2005); Sanders v. Colwell, 248 Ga. 376 (1981).
If, after review, the court finds that the agreement violates any of these criteria, the terms of the agreement will not be incorporated into the final divorce decree and the contents of the agreement will not be considered by the court or jury in deciding the issues of the divorce. Alexander v. Alexander, 279 Ga. 116 (2005) and Corbett v. Corbett, 280 Ga. 369 (2006). In order to ensure the enforceability of your pre-marital agreement in the event of divorce, keep the following in mind:
- It is best to talk about and agree to the terms of your prenuptial agreement with your future spouse at least 6-12 months before your wedding. Otherwise, a court may refuse to enforce the agreement if it was entered into too close to the wedding date. Courts do not favor prenuptial agreements entered into on the eve of weddings because the threat of cancelling or postponing the wedding may cause some to sign an agreement they would not otherwise enter into.
- Although prenuptial agreements are enforceable in Georgia, what may be acceptable in Georgia may not be acceptable or enforceable in another state.
- Each party should be represented by his or her own attorney. In the event that one party does not retain their own separate counsel, the attorney drafting the prenuptial agreement can only represent and give legal advice to one party. The unrepresented party will have to sign an acknowledgement stating that he or she refused representation and that she is entering the agreement willingly. Not only must each party be represented by separate attorneys, but also both attorneys must be retained and compensated separately.
- An itemized statement or spreadsheet of the assets and debts encompassed by the pre-marital agreement should be attached to the agreement itself. This schedule of assets and debts should include the financial information of both parties. In fact, it may be best to attach separate asset and debt worksheets for each party individually. This is an important step, because there must be a full disclosure of each party’s assets for an ante-nuptial agreement to be valid.
- Ensure that all values representing the balance of pre-marital assets like retirement accounts, investment portfolios, liquid bank accounts or even real estate are up to date and accurate. It is a good idea to obtain statements or have appraisals done just prior to the wedding date to set the premarital value and attach same to the agreement.
- If you have substantial liquid assets, consider keeping what you already have prior to the marriage in a separate account with only your name on it. This will make these assets easier to identify in the event of divorce. Additionally, keeping these assets separate will ensure no co-mingling of assets takes place. Read more about comingled property and the distinction between separate and marital property in our articles on these topics.