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Postnuptial agreements are similar to prenuptial or ante-nuptial agreements in that they are legal agreements entered into by both spouses during the marriage that spell out how assets or debts will be divided in the case of divorce or death. Essentially, these agreements are prenuptial agreements that are signed during the marriage, not before. A couple may want to seek a postnuptial agreement for all of the same reasons that a couple would seek a premarital agreement. For example, a couple may enter into a postnuptial agreement to make sure each spouse’s separate assets remain separate upon divorce, to agree that neither spouse will be entitled to alimony upon divorce, or to deal with a major financial change that happens during the course of their marriage, like the occurrence of an inheritance or the immense success of a business. Additionally, a couple may take this option because a prenuptial agreement was not necessary or not considered prior to the marriage.
Also similar to prenuptial agreements, postnuptial agreements are enforceable in Georgia. See Sanders v. Colwell, 248 Ga. 376 (1981). What this means is that if a couple enters into such an agreement, Georgia courts will likely recognize it and legally enforce its terms. However, a court must first analyze the agreement according to the three criteria listed below before the agreement may be enforced:
- 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 Blige v. Blige, 283 Ga. 65 (2008); Mallen v. Mallen, 280 Ga. 43 (2005); Gravley v. Gravley, 278 Ga. 897 (2005); Sanders v. Colwell, 248 Ga. 376 (1981).