What Is a Prenuptial Agreement?

A prenuptial agreement (commonly referred to as a “prenup”) is a legal document that details what will happen to a couple’s assets and debts should they divorce. While it’s not likely that most people enter into marriage thinking that they’ll divorce eventually, more than 10% of couples in Georgia end their marriages. A prenup is a safeguard for both spouses.

To be legally enforceable in Georgia, several requirements must be met.

  • Legally of age to marry. In Georgia, regardless of parental consent, both parties must be at least 17 to marry. If one is 17, the other cannot be more than four years older. A prenup won’t be valid if this is violated.
  • No bigamy or family marriages. Neither spouse is allowed to be already married to someone else, nor can they marry a close relative such as a parent, grandparent, niece, or nephew.
  • Mentally sound. Each party must be capable of understanding the document they’re signing and its outcomes.
  • Full disclosure. Each party must provide full disclosure of assets and debts. Hiding either can invalidate the prenup.
  • Access to an attorney. Each party must be given the opportunity to consult with an attorney about the prenup. It’s not required, but they must have been given the chance.
  • No coercion. Neither party is allowed to coerce the other party into signing the prenup.
  • Signed, witnessed, and filed. Each party must sign the written document, along with two witnesses. Then, the document must be filed in the county clerk’s office within three months of it being signed.

Is Georgia a Community Property or Equitable Division State?

Courts across the U.S. follow one of two models when working on asset and debt division during divorce proceedings.

  • Community property. This holds that any property deemed marital property (acquired and/or used by both spouses during the marriage) should be divided as close to 50/50 as is feasible.
  • Equitable division. This holds that property division is based not on 50/50 but on what’s fair for each spouse. It takes into account each spouse’s contribution to the marriage (including intangible situations such as one spouse leaving a career to stay home and raise children or a spouse paying for the education of the other spouse), among many other factors, including age, length of the marriage, and the earning potential of each spouse.

Georgia is an equitable division state. That means the division of assets and debts will not necessarily be anywhere close to 50/50. That’s why having a prenup in place is highly advisable so that someone doesn’t lose assets that are valuable to them or face taking on the debts of the other. Even if it doesn’t seem possible that divorce will ever happen, take the time to consult with an experienced family law attorney who can advise you on whether you should have a prenup and what you need to do to ensure it’s legally enforceable.

What Happens to Divorce Settlements When a Prenup is in Place?

When a legally enforceable prenup is in place, and divorce proceedings begin, the court will likely use the terms of the prenup rather than pursue full equitable distribution. It can also speed up the divorce process because the negotiations took place during the prenup’s development, so it’s more a matter of implementing what’s already been agreed on rather than starting from the beginning.

That doesn’t mean there won’t be any negotiation. If there are assets or debts that weren’t addressed in the prenup, those will have to be dealt with and are likely to fall under equitable distribution. If the marriage resulted in children, the matter of child support and custody would have to be handled in court, as Georgia law prohibits those from being included in a prenup. That’s because Georgia courts will make child-based decisions based on what’s in the child’s best interests, not on what the parents prefer.

Is it Ever Possible to Challenge a Prenup?

A carefully drawn-up prenup can be difficult to challenge. That said, there are some situations in which it can be done successfully. In these cases, the court may then turn to equitable division.

  • Fraud or misrepresentation. If one spouse can be proven to have withheld or hidden assets or didn’t admit to debts, the prenup may be invalidated. A spouse who wasn’t forthcoming may be penalized in the division of assets and debts.
  • Involuntary agreement. This happens if one spouse coerces the other in some way (for example, forcing the spouse to sign the agreement the night before the wedding with threats to cancel the wedding if the agreement wasn’t signed).
  • Grossly unfair. This happens when a prenup is so clearly biased in favor of one spouse over the other that the court finds it unconscionable.
  • Changed circumstances. This involves unexpected life changes, such as one spouse becoming disabled or a significant change in income.

What Should I Do if My Spouse and I Want to Divorce, and We Have a Prenuptial Agreement?

Call Hecht Family Law as soon as possible at 470-380-7256 to schedule a free case evaluation. Divorce is one of life’s most stressful events, and we understand it not just from the legal viewpoint but from personal experience. With that experience and legal knowledge, we can review your case and help you understand what the right approach may be for the best possible outcomes.