Pre- and Post-Nuptial Agreements In Georgia
It may seem unromantic, but more and more couples are entering into prenuptial agreements nowadays, or even postnuptial agreements if they think it necessary and in an effort to prevent or minimize divorce proceedings in the event of the dissolution of the marriage. A prenuptial agreement can provide some much-needed peace of mind, especially if you are entering into a second marriage, or if you or your spouse are entering into the marriage with significant assets. An experienced attorney can help smooth out the process of drawing one up, and ensuring that it is executed correctly.
Prenups Not Always Enforced
Prenuptial agreements were barred in Georgia until the 1982 case of Scherer v. Scherer, which then allowed their consideration when dividing assets during a divorce. In most divorces, a prenup or postnup will be recognized and taken into account when resolving issues during the process. Prenuptial agreements are not automatically enforced, though, and the ultimate call on whether the document is valid and enforceable always rests with the court. If there is enough evidence to suggest possible fraud, duress/force, or mistake of material fact, the court may invalidate all or part of the agreement.
The court may also ignore a prenup or postnup if it is unconscionable. The idea of unconscionability has its roots in the common law, and if a contract is found unconscionable, it means that the terms are so one-sided that the average person would find them shocking or unfair. For example, if your prenup gives the overwhelming majority of the marital property to one spouse while the other is left destitute, it could be ruled unconscionable and unfair.
Lots Can Be Addressed
In addition to potential issues with enforceability as a whole, there will be times when an individual provision in your prenup or postnup can potentially torpedo the entire agreement. The law allows for a prenup or postnup to address a host of different future issues, most commonly including asset preservation or division (for example, stating that a certain separate asset should always remain the separate property of one spouse, even if it might otherwise become marital property).
It is important to keep in mind that while prenups can deal with issues like the determination of separate versus marital property, alimony and the division of marital debts, they cannot by law dispose of child custody or child support obligations. The right of support, in particular, belongs to the child, not to the parent, and the parents cannot sign away a right that does not belong to them. Child custody rights, meanwhile, cannot be signed away in a prenup because it is not possible for the couple to adequately assess the best interests of a child at a future date, and the best interests of the child is the standard by which a court makes determinations involving custody.
Can An Atlanta Prenuptial Agreement Attorney Help You?
Some couples choose to do without a prenup, but it is a good idea for every couple to at least explore the possibility. Our Atlanta family lawyers at Buckhead Family Law are well versed in this area of Georgia law, and we are happy to try and assist you in determining how you and your spouse can best provide for your family. Call our office today to speak to an attorney.