If you are you planning on getting married soon, then you may want to consider entering into prenuptial agreement. By entering into a prenuptial agreement (also called premarital agreements), you may be able to decide ahead of time in an event of divorce, how a financial matter can be resolved. However, entering into a prenuptial agreement may not be for everyone. Therefore, it is important to seek professional guidance prior to entering into a prenuptial agreement.
If you are seeking an uncontested divorce and currently have a prenuptial agreement, this should facilitate the process. However, because prenuptial agreements do not determine child support or child custody, there are additional issues parties with children can disagree about. However, if there are no minor children, a prenuptial agreement should serve to resolve most if not all asset and debt issues, making an uncontested divorce much easier. Below is a discussion of premarital agreements in Georgia and list out the advantages and disadvantages of entering into one.
Prenuptial Agreement Defined
A prenuptial agreement is a contract between marital couple that is entered into prior to marriage. A prenuptial agreement can determine property division in an event of divorce. By deciding not to enter into a prenuptial agreement, states have the discretion to determine the division of property and marital assets in an event of divorce. Prenuptial agreements “enable an individual to protect a family business or specific piece of property from possible claims by a former spouse, and further allow the couples to manage the financially disadvantageous aspects of a divorce.”
Entering into a Prenuptial Agreement
Prenuptial agreements may not be for everyone. However there are several reasons one may want to consider entering into one, prior to marriage. Often times, people believe that only wealthy people enter into a prenuptial agreement. However, this is not true as anyone who owns significant assets, or debts, or has children from another marriage may want to consider entering into a prenuptial agreement. By entering into a prenuptial agreement, you can protect your personal assets from getting into the hands of your spouse in an event of divorce. Additionally, by entering into premarital agreement, you can also protect yourself from having to take on your spouse’s debts. If you have any interest in an inheritance, then you may want to consider entering into an agreement to protect the inheritance at the time of a divorce. Similarly, if you plan on giving the inheritance to children from prior marriage, a prenuptial agreement may be beneficial in such circumstances.
Determining the Enforceability of Prenuptial Agreement In Georgia
The Georgia court in Schrer v. Schrer sets forth a three-prong test for determining the enforceability of prenuptial agreements. To determine the factors listed below, the court analyzed both the procedural and substantive fairness of prenuptial agreement. To determine whether the prenuptial agreement should be enforced, the Court in Schrer considered the following:
- Whether the agreement was obtained through duress, fraud, or mistake, or through representation
- Whether the agreement is unconscionable
- Whether the facts and circumstances have changed since the agreement was executed, so as to make its enforcement unfair and unreasonable
Furthermore, a majority of the states have adopted the Uniform Prenuptial Agreement Act. The Uniform Prenuptial Agreement Act determines the factors the courts rely upon to determine the enforceability of the prenuptial agreements. While Georgia has not adopted the Uniform Prenuptial Agreement Act, many of its provisions are still very similar to the provisions afforded under Georgia law. For example, in the state of Georgia, prenuptial agreements are required to be in writing. Additionally, two (2) people are required to be the witnesses. As witnesses, they are required to watch both spouses sign the agreement. Witnesses’ signatures are also required.
After the agreement is signed, either spouse or the spouse’s attorney has the option of filing the agreement with the Superior Court Clerk’s office where either spouse resides within three (3) months of signing date. However, it is generally recommended that an original copy be kept in a safe secured place such as a private safe deposit box at a bank. Furthermore, to sign the agreement, both spouses must have the minimum competency to enter into the prenuptial agreement. This simply means:
- Both spouses are of legal age to get married. (If underage, the underage spouses can sign the agreement with parent’s permission.)
- Both the spouses are mentally competent to enter into the premarital agreement. (insanity or severe mental disability will void the agreement)
- No other marriage may be valid at the time the agreement is entered into.
- The spouses may not be related to one another.
Under the prenuptial agreement, both spouses should truthfully list the assets. Furthermore, both spouses must have a reasonably opportunity to speak with an attorney prior to signing the agreement. In the state of Georgia, unlike other states, the agreement that is signed a day or two prior to the wedding ceremony, may be held enforceable as long as both the spouses have gotten a reasonable opportunity to consult a family law attorney. Choosing not take the advantage of a counsel is irrelevant in determining the enforceability of the agreement.
Factors the Court Considers in Not Enforcing a Prenuptial Agreement
At the time of divorce, if the spouses have entered into a prenuptial agreement, the judge will have the discretion to determine whether the agreement will be enforceable. If any of the following factors listed below are present, the prenuptial agreement will be invalidated:
The agreement was entered into through fraud, duress, or mistake.
To determine whether the agreement was entered into through fraud, it is important to determine if one of the spouses lied about the material facts that go to the essence of the marriage. However, it is important to remember that there must be significant fraud that goes to the essence of the marriage. If for example, one of the spouses intentionally conceals substantial assets, the intentional misrepresentation will be considered fraudulent to invalidate the agreement. On the other hand, if one of the spouses promises to take care of the other spouse, despite the agreement, that will not be enough to constitute as fraud.
One of the spouses made a material misrepresentation by failing to disclose the material facts.
If one of the spouses fails to disclose the material facts that go the essence of the marriage, then the failure to disclose can invalidate the premarital agreement. For example, if a spouse lies about the significant amount of assets owned at the time the agreement is entered into, the premarital agreement may be invalidated. However, failure to disclose your income in the agreement will not render the agreement unenforceable.
Since the agreement was entered into, the spouses’ circumstances have significantly changed, making its enforcement unfair and unreasonable.
Under this factor, the agreement will only be unenforceable if the material change in circumstances is so extreme. If for example, a spouse suffers a serious physical or mental injury that impairs his ability to work and earn an income, court may decide not to enforce the agreement. However, it is important to remember that the prenuptial agreement won’t be invalidated just because one of the spouse’s financial situation changes dramatically during the course of marriage, or there is evidence of adultery.
Prior to entering into a prenuptial agreement, it is important to consider all the factors that are specific to your case. Depending on your circumstances, an attorney may advise you not to enter into a premarital agreement, or at least not the one you are presented with or are planning to ask your spouse to sign. This is why it is so important to consult an experienced family law attorney to discuss your case specifics prior to taking any action.
If you are considering entering into a prenuptial agreement, contact Coleman Legal Group, LLC at 770-609-1247 today. Our qualified divorce and family law attorneys are willing to guide you through every step in determining whether entering into premarital agreement is right for you or not.