Enforceability of Antenuptial Agreements

When properly drafted and entered into willingly by both parties, an antenuptial agreement, or prenup as it is commonly referred to, is legally enforceable. As a type of marital contract, the guidelines for executing a prenuptial agreement are outlined under the Georgia code and may be used to protect each spouse’s individually owned property and assets in the event of a divorce.

Prenuptial Agreement Checklist

The guidelines for establishing and enforcing a prenuptial agreement are outlined under the Georgia Domestic Relations Code. In order to be valid in a future action for divorce, your prenup must not interfere with the rights of third parties, prior purchasers, or creditors and meet these qualifications:

  • Was the prenuptial agreement entered into willingly by both parties, without any coercion?
  • Is it in writing and signed by at least two witnesses?
  • Does it fully disclose all assets that each party holds?
  • Was it properly filed and recorded with the court?

It is not required that these contracts be drafted by a prenuptial agreement lawyer, but whether the option to retain legal assistance was provided prior to signing could be an issue in enforcement.

Issues With Enforcing An Antenuptial Agreement

The Georgia Bar Association advises that the Supreme Court has outlined three basic questions in dealing with prenups after marriage:

  • Was it obtained through fraud, duress, or misrepresentation?
  • It is unconscionable, or unjust to the rights and interests of both spouses?
  • Have circumstances changed considerably since the prenup was first introduced?

Provided the above standards are met, your antenuptial agreement is enforceable.

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