Georgia Prenuptial and Postnuptial Agreements
Many people have misconceptions about a prenuptial agreement (sometimes called prenup or antenuptial). Most often, prenuptial contracts protect the interests of existing children or partners in family businesses. Other times, it protects the higher income earning spouse.
Postnuptial agreements (those entered into after the parties marry) are mainly used to protect the financially responsible spouse from the overspending spouse or as a way to memorialize the agreement of a reconciliation between the parties after one party's transgression broke the party's vows.
You do not need to be a Hollywood celebrity or millionaire banker to benefit from a prenup. Many people entering a second marriage, having children from previous relationships or having family properties find them helpful. It makes sense, even if it isn't romantic. If money conversations are too uncomfortable or challenging to encounter before the marriage, wait until the couple discovers what those conversations are like during the marriage. Conversations between engaged couples that ensure both parties understand their rights and obligations clearly from the very beginning will benefit the marriage like nothing else can.
Understanding Prenuptial & Postnuptial Agreements
Prenuptial Agreements
An appropriately crafted prenuptial agreement can designate certain assets as separate, so they would not be subject to division in divorce, and ownership would be clear for inheritance purposes.
Both parties may be similarly situated, and there is a likelihood of acquiring significant family-owned assets such as vacation property, closely-held stock, or professional practice. They may have intentions to keep them separate. Nevertheless, it can be essential to agree upon that characterization in writing. Doing so can not only prevent later misunderstandings; it can keep the title to these assets clear, which can be important when they are sold or insured.
We recommend creating any prenuptial agreement well before your wedding date to give you and your intended time to plan and ensure that the romance remains on the big day. Each party should retain an attorney to protect their interests.
Postnuptial Agreements
Postnuptial agreements are gaining in popularity as financial tools for couples who are already married. These agreements (sometimes called marital agreements) memorialize financial decisions such as setting budgets or keeping a spouse's business assets and liabilities separate from the couple's finances.
Just as with prenups, both parties should retain a Georgia attorney experienced in drafting marital agreements to protect their interests.
Why Get a Prenup or Postnup?
As an attorney practicing divorce law in Georgia, the reasons you should get a prenup are overwhelming. Let's face it; there is a fifty percent chance a married couple will get a divorce. The percentages increase for second marriages. As a practical matter, the courts in Georgia essentially begin with the presumption that it is fair to divide income and assets acquired during the marriage equally. To put it in perspective, it's like treating the couple as if they were still living in the 50s when most American families looked like the Cleavers in the popular TV show 'Leave it to Beaver."
Today, most families have two breadwinners. It is not uncommon for the wife to be the breadwinner. The marriage could be a second or third for one party. After building their careers or businesses, the parties may have married later in life. There may not be any children from the marriage.
Given that diversity, a presumption that all income and property are from equal efforts of both parties makes no sense to most clients hearing that from their divorce attorney for the first time. The battle that subsequently ensues in pursuing justice is emotionally and financially draining.
Benefits of Prenups
Reasons to Consider a Prenup
Effects of Premarital or Marital Agreements on Divorce
While no couple wants to think their marriage will end in divorce, having a pre or postnuptial agreement helps to ensure you are protected as it will dictate how the divorce will be handled. Depending on the terms in this post or prenup contract, it can protect you personally and financially while limiting the potential for no long, drawn-out legal battles.
Common areas addressed in a prenup include:
Division of Marital Property
Depending on the circumstances, the judge may award your spouse a more significant share of the property, income, and assets. With a marital agreement in place, you and your spouse will get the portion you previously agreed on.
Alimony
If a spouse earns significantly less than the other, they may be entitled to alimony. If this was an issue addressed in your pre-or postnuptial agreement, the judge is required to abide by your decision.
Child Custody
While the terms of a prenuptial/postnuptial agreement do not include child support; it may be wise to have a provision in the prenup to require the collaborative process in making these arrangements.
Common Clauses in a Prenup or Postnup
When considering what to include in a prenuptial agreement, you must be sure and cover all bases. The following are key areas to consider:
- Property division: You may include a stipulation on how to treat earnings or property acquired during your marriage.
- Alimony: If one spouse earns less than the other or sacrifices their career to care for children, include alimony conditions or limits.
- Business interests: If you own or intend to start your own business, your spouse's contributions to it during your marriage could result in a future ownership interest in that business for your spouse, and you would include conditions or limits.
- Retirement accounts: Once you are married, contributions to a pension and/or 401k accounts will be considered marital property. It is essential to discuss how a divorce would affect your spouse's interest in those accounts.
- Attorney's fees: In contested divorces, attorney's fees can drive up costs. You may stipulate that each will be responsible for their legal fees.
- Confidentiality agreements: You may stipulate that your marriage or divorce details and any settlements are confidential.
Other areas of concern:
- Income taxes, deductions, and claims for tax refunds
- Management of household bills and expenses
- Management of joint bank accounts
- Arrangements regarding investing in certain purchases, such as the marital residence or rental houses
- Management of finances, such as credit card spending and payments and savings contributions
- Property distribution to the survivor, including life insurance, in the event of death
- Education financial support, such as arranging to put one or the other through school
- Settlement options, such as using mediation or arbitration.
Prenuptial Agreement Checklist
The guidelines for establishing and enforcing a prenuptial agreement are outlined under the Georgia Domestic Relations Code. 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?
- Did both parties have the option to obtain legal representation? If not, it could be an issue in enforcement.
Issues with Enforcing a Prenuptial Agreement
- 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 entered into?
Amending Prenuptial Agreements
If you and your future spouse have already drafted and signed a prenuptial agreement and later decide you want to change the terms of the prenup contract, you generally have the right to do so. Providing specific conditions are met, and it is not in violation of any current contract, your prenuptial agreement lawyer may be able to draft an addendum to the original.
Some prenups have clauses and provisions for canceling the agreement. Still, any significant changes to it would need to be made by an addendum, which modifies or updates the original terms. The validity of an addendum to your prenup requires a change in circumstances that necessitate altering the original. These changes may include the following:
Undisclosed Assets or Property
Discovering your spouse has property or accounts they failed to disclose justify an addendum to the original
Newly Acquired Marital Property
You may need to update your prenup to include a financial windfall or a new business venture
Changes in Health or Economic Status
Fluctuations in earnings and health concerns occur naturally over the course of your marriage, but any significant changes, such as quitting a job to support your spouse or being diagnosed with a debilitating disease, may justify changes in your agreement.
Georgia Reconciliation Agreements
A reconciliation agreement is a postnuptial agreement, a prenup after marriage for a couple who has previously contemplated divorce. Reconciliation agreements may address property, asset, and debt distribution issues.
The Georgia Supreme Court case of Spurlin v. Spurlin, 289 Ga. 818 (2011) highlights situations in which a reconciliation agreement may be desirable. In this case, the wife in the matter filed for divorce from her husband. After she confessed to an extramarital affair, the couple later reconciled and resumed living together before the final divorce.
The couple entered into a reconciliation agreement, preemptively settling future issues regarding the division of marital property, alimony, and child custody. (It is important to note that the court reserves the final right of decision concerning custody matters, and any arrangement agreed upon must also be in the child's best interests.)
A reconciliation agreement is an important option to consider to protect yourself in the following situations:
- For couples who agree to reunite while undergoing marital counseling
- For those who opt to forgive conduct in their spouse which would have been grounds for divorce, negatively impacting awards of alimony and property division
- As a way of updating existing premarital agreements to reflect changes in circumstances and to include certain penalties or provisions
