The short answer to this question is: Yes, divorcing spouses may definitely challenge the enforceability of their prenuptial agreement. In fact, this practice in not uncommon. The downside of making this legal maneuver is that there is no guarantee such a challenge will be successful.
The general purpose of prenuptial agreements are to predetermine alimony awards and establish how property will be divided in the event of divorce. If a divorcing couple has entered into a prenuptial agreement, it is very likely that the court presiding over the divorce case will enforce that agreement and incorporate the terms of that agreement into the Final Order and Decree of Divorce. However, Georgia courts have wide discretion in determining whether a prenup is valid and worthy of enforcement. Once a prenuptial agreement is challenged by a party during a divorce action, the presiding judge will ask the following questions to determine the validity of the prenuptial agreement:
- 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 the answer to these questions is no, the agreement will be deemed valid and enforceable. On the other hand, if the answer to any of these questions is yes, the agreement will likely be deemed unenforceable by the court.