Pre and Postnuptial Agreements

Georgia law allows a couple to enter into a contract of their own creation, either before or during the marriage, setting forth their financial obligations in the event of a divorce. Such agreements are commonly used to protect property that one or both parties owned prior to the marriage from becoming divided upon divorce. They can also be used effectively as an estate planning tool to protect future inheritances of adult children in the event of remarriage later in life.

Prenuptial Agreements

Often referred to as a prenup, a prenuptial agreement is a contract that a couple enters into prior to marriage that divides their assets in case of divorce. Anyone can enter into a prenuptial agreement; these contracts are not solely for the wealthy or famous. If a couple enters into a prenuptial agreement, the judge presiding over the divorce case will likely approve the agreement and incorporate it into the final divorce decree. However, the court has wide discretion and may refuse the agreement if:

• The contract was obtained through fraud, duress, mistake or misrepresentation.
• The contract is unconscionable.
• The circumstances have changed so drastically since the prenuptial agreement was first signed that enforcing the agreement would be unfair and unreasonable.

Postnuptial Agreements

A postnuptial agreement is similar to a prenup in that it is a contract that details how the spouses want their assets or debts to be divided in the event of divorce. However, a postnuptial agreement is signed during the marriage. Couples may take this legal route because they did not consider a prenup before getting married or because they did not think a prenup was necessary at the time. Postnuptial agreements are enforceable in Georgia, and courts will enforce the terms of such an agreement as long as:

• The agreement was not obtained through fraud, duress, mistake, misrepresentation or nondisclosure of material facts.
• The agreement is not unconscionable.
• The facts and circumstances have not changed so drastically that enforcing the agreement would be unfair or unreasonable.

If properly drafted and executed, a prenuptial or postnuptial agreement can allow a couple to separate and divorce promptly and amicably without a costly battle. The attorneys at Boyd Collar Nolen Tuggle & Roddenbery have extensive experience in preparing prenuptial and postnuptial agreements, as well as litigating the validity of an agreement.