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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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Caution on the Use of Images, Photos & Graphics on your Company’s Website

Be sure you have the right to use images, photos, graphics and other materials on your company’s website. Even if you hire a third party developer to design your website, you are still liable for copyright infringement if you in fact do not have the right to use images, photos, graphics and other information in your company’s website. There are a number of stock photo companies which, for a fee, grant a license for you to use the stock images, photos and graphics.

There is a company called Getty Images which buys and owns a large amount of the images, photos and graphics which are seen on the Internet. It is my understanding that Getty Images has sophisticated software which scans the Internet, and has the capability of locating websites which use images, photos and graphics that do not have licensed rights to do so. Getty Images then sends threatening demand letters, asking for a substantial sum of money for each image, photo and graphic used in order not to sue for copyright infringement. Accordingly, in reviewing your company’s website, be sure to have license or other rights (or use your own material) to use the images, photos and graphics displayed there. If you use a third-party to develop your website, be sure to stress the importance of using images, photos and graphics where you have a legal right to use them. It is possible to obtain an indemnification agreement from the third party website developer, indemnifying you or your company if images, photos and graphics are used without the right to do so (although indemnification is only as good as the third party website developer is able to reimburse you).

© Walling Law Firm, P.C. 2014

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Why Have An Employee Handbook?

An issue that I see time and time again is businesses which do not have an Employee Handbook.  An Employee Handbook covers a range of rules and policies of the business, which are impossible to cover in a written Employment Agreement.  If a business has an Employee Handbook, and if an employee violates a rule or policy in the Employee Handbook, then the business can take disciplinary action and reduce the risk that the business may be liable for charges of unlawful employment discrimination. Without an Employee Handbook in place, a disciplined employee can more forcefully argue that he or she has been discriminated on the basis of race, sex, religion, national origin, physical disability, or age, since the business does not have a written policy in place. Without an Employee Handbook, a disciplined employee is more likely to feel that he or she has been treated unfairly.

Matters covered by an Employee Handbook are often conduct-related, such as off-duty conduct which damages the business’ reputation, workplace violence (banning the bringing of knives and weapons to the workplace), outside employment such as moonlighting, moonlighting for a competitor, using company email for political or non-business purposes, on-line conduct at the workplace, acceptance of gifts or money from customers, use of company property for personal business or personal reasons, attendance, use of inappropriate or profane language, alcohol, drugs, bad hygiene, sleeping on the job, and the many other issues which arise from time to time whenever there is a gathering of two or more people.

Having policies in an Employee Handbook allows the business to take disciplinary action when there has been a violation of those policies. A business will often learn of an issue with an employee by way of complaints from other employees, and a business needs to have the tools necessary to discipline an offending employee. Of course, policies in an Employee Handbook should be enforced by the business in a non-discriminatory manner.

A business will want to be certain that the Employee Handbook itself is not an employment agreement, and should specify that employment is at will unless otherwise agreed to in writing. An Employee Handbook has many legal implications, and it should first be reviewed by an attorney. Attorneys who practice in this area have templates which provide the bulk of the provisions for an Employee Handbook. An Employee Handbook is recommended for businesses of all sizes.

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