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Our prenuptial agreement attorneys at Chambers Family Law are extremely experienced at helping to create a solid and enforceable “prenup” contract to determine and confirm how a couple’s assets will be divided and how support will be determined in the event of a divorce.
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Most couples in the glow of an impending marriage, may find the prospect of a prenuptial agreement difficult to discuss.
Most couples in the glow of an impending marriage, may find the prospect of a prenuptial agreement difficult to discuss.
However, like other preparations for marriage, when either or both of the parties have significant assets or business interests at the time of marriage, or are expecting a significant inheritance, a prenuptial agreement can not only protect the assets of each individual, but also establish what, if any, support, or alimony will be provided for the other spouse.
A prenuptial agreement can basically resolve all issues, (except for the issues of custody and child support), that need to be resolved in the event of a divorce. The prenup can act to minimize significant controversy in the event of a divorce by effectively resolving all of those issues in advance that may otherwise cause significant and protracted litigation.
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The Importance and Requirements of a Valid Prenuptial Agreement
This saves both parties from a potentially long and adversarial divorce, thereby saving them significant expense in legal fees. Further, a prenuptial agreement is always a sound investment for any second or third marriages, or for couples entering marriage later in life after an established career.
For a prenuptial agreement to be valid, enforceable, and upheld by the court if challenged by the other party, it must meet numerous strict legal requirements and conditions and must be very detailed, comprehensive, and all factors thoroughly addressed and included.
Otherwise, a prenuptial agreement is subject to challenge and can be found unenforceable by a court.
For example, a prenuptial agreement must contain a full, complete, comprehensive disclosure of each party’s assets and values at the time of the marriage, as well as a full, complete, and accurate disclosure of their incomes. Otherwise, the prenup can be held unenforceable by a court for lack of full disclosure.
Prenuptial Agreements and Addiction
When entering a marriage with a recovering addict, even in long term recovery, a prenuptial agreement can protect your assets and income in the event your spouse relapses.
How Prenuptial Agreements Work
A prenuptial agreement (commonly referred to as a prenup) is a written legal contract between a couple intending to become legally married. It must be entered into in sufficient time prior to marriage and serves to protect each parties’ assets owned at the time of their marriage, provides how any marital assets may be allocated or divided in the event of a divorce, and, how alimony/support, if any, will be handled.
A similar agreement, or postnuptial agreement, can be entered into after the wedding has taken place.
Prenups can also protect spouses from each other’s premarital debts. Without one, a divorced person may be unknowingly responsible for their spouse’s medical debts, loans, tax liabilities, or other indebtedness
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Key Provisions of a Prenuptial Agreement
Generally, prenup agreements can address, resolve, and provide:
Provide
Clarifications between marital property versus separate property, and secures that separate property remains with the owning party. A prenup is required to outline and clearly establish which assets should be considered separate properties and which remain with the owning party. This could be property from a previous marriage or real estate you owned before the marriage, or property that you have inherited prior to the marriage.
Protections against the other spouse’s debts and liabilities. Without a prenup, creditors can go after the marital property even though only one spouse is the debtor.
Provisions to provide protections for children from previous marriages.
Protections to keep family property in the family. Family heirlooms, a family business, family partnerships, and any future inheritance can be designated to stay within your family in the event of divorce.
Protections of estate plans. This would be done in conjunction with other estate documents, including wills and living trusts.
Additional items that might be included in a prenuptial agreement include:
Additional Factors
Income, deductions and claims for filing tax returns
Management of household bills and expenses
Management of joint bank accounts
Arrangements regarding investing in certain purchases or projects, like a house or business
Management of credit card spending and payments
Savings contributions
Property distribution to the survivor, including life insurance
If your prenuptial agreement is well drafted, comprehensive, thorough, fully, and accurately discloses all assets, liabilities, and income, and meets all of the other necessary strict requirements, the court will enforce your prenup in the event of a divorce and make the terms a part of the Final Judgment and Decree of Divorce.
A premarital agreement cannot in any way preaddress or resolve issues relating to child support or child custody/visitation rights, as those issues are strictly reserved for the court’s final review and approval. Any provisions of the agreement that violate the law may be invalid; however, it is possible for the court to strike the illegal clauses and enforce the remainder of the agreement.
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Important Concerns When Creating a Prenuptial Agreement
Prenups must be drafted correctly to be enforceable.
Issues that may render a prenuptial agreement invalid or unenforceable by the court:
- Not formally and properly having the agreement, signed by both parties, witnessed, and notarized
- Both parties not being represented by separate counsel
- Being pressured or threatened to sign the agreement, or the agreement being entered into under duress
- Insufficient time to consider the agreement, and thereby signing under duress or undue pressure
- False or incomplete information, or lack of full and accurate disclosure about income, assets, or liabilities
- Unconscionability (circumstances changed so significantly since signing the agreement that its enforcement would be unconscionable)
It is vital to seek help from an attorney very well versed and with significant experience in the legalities and correct drafting of prenuptial agreements to ensure you have a valid and enforceable document.
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Frequently Asked Questions About Prenuptial Agreements
A judge will review any prenuptial agreement for its validity and then determine its enforceability. They may ask questions to learn more about the circumstances of the signing of the agreement to determine if either party was coerced, under duress, if the circumstances have changed so significantly as to make the enforcement of the agreement unconscionable, or if there was a failure to disclose all assets, liabilities, and income fully and accurately.
The courts will generally enforce prenuptial agreements if they are properly drafted and meet all strict legal requirements. However, if the prenuptial agreement is not properly drafted or any of the above criteria are met, the court may see fit to void all or parts of a prenup.
Generally, there is no expiration date on a prenup agreement unless it includes a “sunset clause” designating a specific date or length of time for its end.
If you sign a prenup you should have an experienced Georgia family law attorney help you negotiate and fully explain to you all of your rights when entering into the agreement because you may not be able to contest the prenup just because you failed to fully read or understand the terms, if the marriage doesn’t work out as you planned.
Since the reality is that almost half of all marriages end in divorce, it is increasingly common that couples choose to establish a prenuptial agreement to pre-resolve the issues of their divorce and to determine their own objectives, and to eliminate the necessity and expense of a long, protracted, and adversarial divorce, rather than relying upon state law to determine their rights during a divorce.
No. There are many reasons a couple considering marriage may want a prenuptial agreement. Your fiancé may want to provide for children from a previous marriage in his or her estate planning, giving children peace of mind about their future inheritance.
When there is a family business, or business partnership, a premarital agreement may be necessary to protect the business in the event of a death or divorce.
If your fiancé has gone through a previous messy divorce, he or she may be reluctant to marry again without a prenuptial agreement. While no one wants to enter a marriage expecting an inevitable divorce, taking a practical approach to potential future challenges is sensible and financially responsible.
Before marriage, consider seeking our experienced prenuptial agreement lawyers at Chambers Family Law to help you negotiate the terms of a valid, solid, and enforceable prenuptial agreement in the event of the dissolution of your marriage. Allow us to help protect your best interests and those of your loved ones.