What To Know Before Signing a Prenuptial Agreement

Nobody enters into marriage expecting an eventual divorce. However, it is smart to plan for the possibility — even if it feels remote. A prenuptial agreement, commonly referred to as a prenup, helps safeguard your assets, streamline legal proceedings, and reduce conflict if you and your spouse divorce.

To be valid, enforceable, and binding, these legal documents must be VERY carefully written and follow state law. If they don’t, they most likely will not be enforceable or valid, and may be thrown out by the court, which will not protect you in a divorce.

It is imperative to have a very skilled family law attorney represent you in drafting a full, comprehensive, and complete prenup that protects and defends your interests, adheres to applicable rules and regulations, and stands up in court.

In this post, the experienced legal team at Chambers Family Law answers common questions about what to know before signing a prenuptial agreement in Georgia.

Who Should Sign a Prenuptial Agreement?

Caught up in the excitement and romance of an upcoming marriage, brides and grooms-to-be rarely think about the logistics of a potential divorce. Some people feel that suggesting a prenup indicates that they don’t trust or love their partner.

In reality, premarital agreements help you and your intended spouse protect your futures while clarifying expectations and deepening communication.

Any couple can sign a prenuptial agreement, which Georgia courts refer to as an antenuptial agreement, before marriage. However, certain circumstances make prenups even more important.

For example, many couples consider prenuptial agreements if the following is true of one or both partners:

• They have children from a previous relationship.
• They own a family business or professional practice.
• They have significant assets or a large income disparity between them.
• One of them  has significant debts that the other does not want to be liable for.
• They marry later in life after an established career and with substantial retirement accounts.
• They had a messy divorce in the past, making them hesitant to marry without a prenup.

What Can Prenuptial Agreements Do?

Georgia prenups can address a range of financial matters, from who retains ownership of a vacation home in a divorce to who receives family heirlooms if one spouse dies. In short, a prenup can pre-resolve all issues in the event of a future divorce, with the exception of the issues of custody, visitation, and child support.

The following are five key functions of premarital agreements:

1. Protect Assets

Asset protection is one of the primary reasons for prenuptial agreements. Prenups stipulate the division of assets for both separate property (assets acquired before the marriage) and marital property (assets acquired during the marriage).

Without a valid premarital agreement, Georgia courts will divide marital property “equitably” between the spouses in a divorce.

While classifying marital property vs. separate property seems simple, it isn’t always so clear-cut. For example, if one spouse places marital money in a retirement account they owned before marriage, the courts may consider part of the account subject to marital division.

Prenups can specify how to handle all kinds of property, including the following:

• Cars, trucks, boats, and other vehicles
• Real estate, including homes and property
• Business ownership, control, and assets
• Investment and retirement accounts
• Personal possessions like jewelry, artwork, and collectibles

2. Divide Debts

Perhaps just as important as dividing assets in a divorce is allocating debts. Even if only one spouse accumulates debt during the marriage, creditors could seek  to go against the assets of the other spouse. Prenups specify how to handle both premarital debts and marital debts.

Without one, Georgia courts may hold you accountable for your spouse’s loans, medical debts, tax liabilities, and other financial obligations.

3. Resolve or Stipulate Alimony

Along with the division of debts and assets, alimony is among the more contentious issues in Georgia divorces. Prenuptial agreements often lay out whether and how much financial support one spouse will provide the other if they divorce.

Unlike some other states, Georgia does not have a set cap on alimony. To prevent a court from deciding the amount of spousal support, you should include alimony provisions in your prenup.

4. Support Estate Planning

Although wills and trusts are the quintessential estate planning tools, prenuptial agreements also serve an important purpose. Many couples use prenups to establish inheritance rights, clarify beneficiaries for insurance policies, and outline property division upon one spouse’s death. While premarital agreements don’t replace wills and living trusts, they help support your estate plan.

5. Clarify Financial Responsibilities

Prenuptial provisions typically take effect after a divorce or a death, but you can also use premarital agreements to outline each spouse’s obligations during the marriage. Like other prenuptial clauses, these may help reduce conflict between partners.

For example, your agreement can address the following:

• Management of joint accounts
• Handling of household bills and expenses
• Payment of outstanding debts
• Tax filings, including income, deductions, and claims
• Management of credit card spending
• Contributions to savings accounts
• Investments in certain projects or purchases

What Can’t Prenuptial Agreements Do?

While prenups can address a variety of matters, there are some legal limitations. Specifically, you cannot include the following in your Georgia prenuptial agreement:

• Child support or custody provisions: Prenups do not settle who receives custody and how much child support one parent owes the other. Instead, the courts will decide these matters based on Georgia Child Support Guidelines and the child’s interests.
• Illegal or unethical terms: Georgia courts will not uphold provisions that violate the law, go against public policy, or incentivize illegal behavior. If some of your prenuptial clauses are unlawful, the court may strike those provisions and enforce the rest of the agreement.
• Unconscionable contracts: Even if your prenup doesn’t contain illegal clauses, courts will not enforce grossly one-sided or unfair agreements. Courts may also rule that significant changes in circumstances after signing (such as one partner becoming disabled) make the original prenup unconscionable.

Georgia law supports and promotes enforcing properly prepared premarital documents that comply with ALL legal requirements. If your prenup does not meet these standards, the court may nullify all or part of the agreement.

What Makes a Valid Prenuptial Agreement?

Now that you know what prenups can and cannot do, what must they contain to be valid and legally enforceable?

Prenuptial validity criteria in Georgia include the following:

• Financial disclosure:  There must be a complete and accurate disclosure of all income, assets, debts, and financial liabilities for each party, normally attached as an exhibit.  Failing to do so may void your prenuptial agreement.
• Written agreement: Georgia courts will not enforce oral premarital agreements. You must put your prenup in writing. Using clear, specific, and unambiguous language in your document helps prevent disputes.
• Voluntary signing: Courts only enforce contracts that both parties enter into voluntarily. If one party threatens, intimidates, deceives, or pressures the other to sign, the prenup may be nullified.
• Adequate time: Insufficient time to consider the agreement (such as handing your fiancée a prenup minutes before your wedding) may count as undue pressure.
• Witness attestation: At least two witnesses must attest to the prenup. One of these witnesses should be a notary to help confirm the document’s authenticity.
• Legal counsel: Although Georgia prenup rules do not require you to use an attorney, it is strongly recommended. If either party is not represented by a separate attorney and does not specifically waive their right to have legal representation, there is a very strong possibility that the prenup will not be valid or enforced by a court. Therefore, when each party is represented by independent legal counsel, it promotes the legal enforceability of the contract.

Can I Change a Prenuptial Agreement After Marriage?

You can modify or even revoke a prenup in Georgia. However, you must follow the same legal requirements as you did when writing the original agreement.

For example, the agreement must be fair, there must be full financial disclosure, and both parties must agree in writing.

What if you didn’t sign a prenuptial agreement but now wish you had? A postnuptial agreement has a similar purpose, content, and legal requirements as a prenup. The main difference is that you sign it after marriage. Even if you already have a prenup, you may wish to amend it or replace it with and Amendment or Addendum, or through a postnup.

Reasons you may want to modify your prenuptial agreement or sign a postnuptial agreement include the following:

• A change in family dynamics, such as welcoming a new child
• A change in career, such as starting a new business or quitting a job to stay home with your children
• A change in assets or financial status, such as taking out a big loan or receiving an inheritance
• A change in state law that affects prenups
• Either party becomes physically impaired or incapacitated

Contact a Knowledgeable Roswell & Atlanta Prenup Attorney

Prenuptial agreements offer many benefits to marrying couples. However, they must follow strict requirements to be enforceable. The potential risks are too great to go it alone. An experienced prenup attorney will explain your rights, ensure you understand the terms and significance of the agreement, and help you avoid common pitfalls in Georgia prenups.

Chambers Family Law is a Roswell and Atlanta family law firm dedicated to helping our clients draft valid and enforceable prenuptial agreements. As experienced family lawyers, we have seen firsthand the issues that arise during divorces, from property division to alimony disputes.

Our knowledgeable and compassionate legal team will work to protect your rights, safeguard your assets, and secure your future. A well-crafted prenup resolves many issues before you enter into a marriage, saving you time and money spent in bitter legal battles and protracted litigation if you divorce.

Call us now at 404-795-5092 or contact us online to speak with our skilled legal team. We have offices located in Buckhead and Roswell.