Although divorce is the last thing on a couple's mind when they're planning to get married, sometimes having the security of knowing what will happen in the event of a divorce can be a stress reliever. This is where prenuptial agreements come into play. A prenuptial agreement, which can also be called a premarital or antenuptial agreement, can outline a variety of important items including:
- the responsibilities and rights of each spouse during a marriage;
- each party's money and property coming into the marriage; and
- how money and property acquired during marriage is divided among each spouse.
There are certain things that cannot be included in prenuptial agreements, which are usually things that run afoul of public policy. For example, a prenuptial agreement that encourages divorce (such as providing a financial incentive to divorce) could have that specific provision, or maybe even the entire agreement, struck down. Additionally, provisions relating to child support or child custody in the event of divorce aren't typically permitted in prenuptial agreements because courts have the final say in such issues.
Enforceability of Prenuptial Agreements in Georgia
In Georgia, prenuptial agreements are referred to both as antenuptial agreements and "marriage articles." As per the statute discussed in the table below, "marriage articles" refers to an antenuptial agreement that was entered into by two people who are now married and "contemplating a future settlement."
In determining enforceability of a prenuptial agreement, the Georgia Supreme Court came up with 3 criteria in the 1982 case Scherer v. Scherer. In order to determine whether or not a prenuptial agreement is enforceable, the court will decide if the agreement:
- Was obtained through; fraud, duress, mistake, misrepresentation/nondisclosure of material facts;
- Is unconscionable; and
- Is unfair and unreasonable given any change in facts and circumstances since its execution.
As can be seen from the criteria above, the enforceability of a Georgia prenuptial agreement will be heavily dependent on the specific facts of each case.
Georgia Prenuptial Agreements at a Glance
When conducting legal research, it's important to read the literal language of the statutes. It's also helpful, however, to read a summary of the statute in plain English since statutes are often written in "legalese." The chart below provides a summary of the laws relating to Georgia prenuptial agreements, as well as links to relevant statutes.
||Georgia Code Section 19-3-60, et seq. (Marriage Articles, Contracts, and Settlements)
|Basic Requirements for Prenuptial Agreements in Georgia
A prenuptial agreement can be executed and enforced by one spouse at any time during the life of the other spouse as long as it doesn't affect the rights of any other person, purchasers, or creditors.
Prenuptial agreements are construed liberally in order to carry into effect the parties' intentions, and the agreement will not be invalidated just because it was missing an element in form.
Georgia prenuptial agreements must also be attested to by at least two witnesses.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Georgia Prenuptial Agreements: Related Resources
For more information and resources related to this topic, you can visit the following links:
Get Legal Help with a Prenuptial Agreement in Georgia
As you can see, there is a specific way that prenuptial agreements must be drafted and presented to your future spouse in order to be enforceable. If you'd like help drafting or reviewing a prenuptial agreement, it's a good idea to speak with a skilled family law attorney in Georgia today.