Prenuptial Agreements

A Prenuptial Agreement is a contract made in anticipation of marriage and can resolve many of the financial issues surrounding the parties (the two spouses) in the event of divorce and death. A Prenuptial Agreement cannot resolve child custody issues or the amount of child support, which would be decided by a divorce court.

Prenuptial Agreements can give one or both of the parties ease of mind in entering into a marriage. Even with a Prenuptial Agreement, the parties are free to make arrangements to the other party which are more generous than provided in the Prenuptial Agreement or can make bequests in a Will which are greater than that provided in a Prenuptial Agreement.

The Prenuptial Agreement can be of vital importance for mature couples who have previously been married with minor or adult children of a prior marriage to whom they wish to leave the bulk of their property. The existence of a Prenuptial Agreement can also allow these adult children to be much more welcoming to a new step-parent, knowing that there is a valid Prenuptial Agreement in place which provides for them notwithstanding the subsequent marriage of their parent.

In negotiating the terms of the Prenuptial Agreement, it is important for the parties to directly address together what each party is to receive in the event of divorce and death.

Prenuptial Agreements can be enforceable in Georgia. In determining whether a Prenuptial Agreement is enforceable in a particular case, the court will employ 3 criteria:

(1) Was the Prenuptial Agreement obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts?

(2) Is the Prenuptial Agreement unconscionable?

(3) Have the facts or circumstances changed since the Prenuptial Agreement was signed, so as to make its enforceablilty unfair and unreasonable?

The leading case in Georgia determining that Prenuptial Agreements can be enforceable in Georgia is Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982).

A Prenuptial Agreement should contain a full and fair disclosure of all material facts and each party’s property, assets, and income as exhibits. Each party to a Prenuptial Agreement should have his or her own attorney. It is not uncommon for the party having the greater assets to pay for the other party’s attorney.

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