Georgia Prenuptial and Postnuptial Agreements
Many people have misconceptions about what a prenuptial agreement (sometimes called prenup) is for. Most often, prenuptial agreements are meant to protect the interests of existing children or partners in family businesses.
You do not need to be a Hollywood celebrity or millionaire banker in order to benefit from a prenup. Many people who are entering a second marriage, who have children from previous relationships, or who have family properties find them helpful. Often it is very positive for everyone to understand their rights and obligations clearly from the very beginning.
A properly crafted prenuptial agreement can designate certain assets as separate so they would not be subject to division in divorce and so that ownership would be clear for inheritance purposes.
It is likely that both members of the couple intend for large or family-owned assets such as vacation property, closely held stock, or a professional practice to remain separate. Nevertheless, it can be important to agree upon that characterization in writing. Doing so can not only prevent later misunderstandings, it can keep title to these assets clear, which can be important when they are sold or insured.
We recommend creating any prenuptial agreement well in advance of your wedding date to give you and your intended time to plan and to ensure that the romance is not taken out of the big day. Each party should retain an attorney to protect his or her interests.
Postnuptial Agreements for Married Couples in Georgia
Postnuptial agreements are gaining in popularity as financial tools for couples who are already married. These agreements (sometimes simply called marital agreements) are commonly used to make 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.
At Stearns-Montgomery & Proctor, we act as advocates for families throughout the Atlanta metropolitan area for both prenuptial and postnuptial agreements, and we have the best interests of both parties in mind while also ensuring we avoid any conflict of interest. Have questions? Call us at (678) 971-3413 or contact us for a consultation.
7 Reasons A Prenup or Postnuptial Agreement Is a Smart Idea for Couples in Georgia
When drafted under guidelines established in the Georgia Domestic Relations code, prenuptial and postnuptial agreements outline issues related to the division of marital property and alimony in the event the couple eventually divorce. There are seven important reasons why a prenup contract or post marital agreement should be considered:
- Communication: According to Psychology Today, stress over financial issues is one of the leading causes of marital problems and divorce. Establishing a pattern of honest communication about financial matters can have a positive benefit on your relationship.
- Clarification: Issues can arise when spouses fail to understand each other’s financial expectations or feel that their partner is being less than honest with them about money. Clarifying your individual and inherited assets and your attitudes towards financial management can help avoid potential problems later in your marriage.
- Assurance: Having a pre- or postnuptial agreement provides the security that your rights, interests, and individual property is protected, both now and in the years to come.
- This is your second or third marriage: It is common for those entering second and subsequent marriages to have children from prior relationships. You can use a prenup to allocate certain assets specifically towards your children, protect ing their inheritance.
- You own a business: If you have your own business or a partnership with another, it is important to realize that your future spouse’s contributions during your marriage to that business could result in an ownership interest.
- You have prior debts: Whether this is your first marriage or you are previously divorced, you may have outstanding debts that need to be dealt with. Your prenup can specify these debts as belonging to an individual party, while also designating how they will be paid.
- Protection of inheritance: If you do anticipate inheriting money, property, or other assets from a loved one at some point in the future, your prenup can help ensure it remains in your sole possession.
Effect of Pre or Postnuptial Agreement 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. Depending on the terms laid out in this post or prenup contract, it can protect your both personally and financially, while limiting the potential for no long, drawn out legal battles take place.
Ways Your Pre or Postnup Can Impact Your Divorce
Provided your pre or postnuptial agreement was entered into in accordance with Article 3 of the Georgia Domestic Relations Code, the terms you agreed to will dictate how your divorce is handled. Common areas addressed in a prenup include:
- Division of marital property: Georgia is an equitable property division state, but this does not mean property is divided evenly. Depending on the circumstances, the judge may decide to award your spouse a greater share. With a marital agreement in place, you and your spouse will get the portion you previously agreed on.
- Alimony: If a spouse earns significantly lower than the other, sacrificed their own career goals to support those of their partners, or left their position to raise a family, 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 child support and custody may not be dictated by a prenuptial or postnuptial agreement, yours may include using a collaborative process in making these arrangements.
What are Common Clauses in a Prenup
When considering what to include in a prenuptial agreement, you must be sure and cover all bases. Provided your agreement is reasonable and fair to both parties and adheres to the legal requirements outlined in Article 3 of the Georgia Domestic Code, there are a variety of terms you may include. The following are key areas to consider:
- Property division: You may include a stipulation on how marital property earned or acquired during your marriage will be divided.
- Alimony: If one spouse earns less than the other or sacrifices their career to care for children, alimony may be awarded, but you may set conditions or limits in your prenup.
- Business interests: If you own or intend to start your own business, the contributions your spouse makes to it during your marriage could result in a future ownership interest in that business for your spouse. However, how ownership in any business shall be treated can be addressed in a prenup.
- Retirement accounts: Once you are married, contribution to a pension and/or 401k accounts will be considered marital property, and it is important to discuss in your prenup how these will be divided.
- Attorney’s fees: In contested divorces, attorney’s fees can drive up costs. You may stipulate now that each will be responsible for their own legal fees.
- Confidentiality agreements: To maintain privacy, you may stipulate in your prenup contract that any details surrounding your marriage or divorce and any settlements received by kept confidential.
- Income, deductions, and claims: for filing tax returns
- Management of household bills and expenses
- Management of joint bank accounts
- Arrangement regarding investing: in certain purchases, such as houses
- Management of finance management: 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 putting one or the other through school
- Settlement of potential disagreements: such as using mediation or arbitration.
Child custody is not determined by prenuptial agreements, but you may stipulate an enforceable collaborative process when it comes to making arrangements.
Ensuring the Enforceability of Prenuptial 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 Prenuptial 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 prenuptial agreement is enforceable.
Amending Prenuptial Agreements
If you and your future spouse have already drafted, signed and recorded a prenuptial agreement with the court 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.
Reasons to Amend Your Prenuptial Agreement
If your prenup agreement was created under the guidelines established in the Georgia Domestic Code, it is a legally binding contract. Some prenups do have clauses and provisions for canceling the agreement, but any major changes to it would need to be made by filing an addendum, which modifies or updates the original terms. To ensure the court enforces an addendum to your prenup, there must be a change in circumstances which 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 type of postnuptial agreement, a prenup after marriage that a couple who has previously contemplated divorce enters into. Reconciliation agreements may address issues relating to property, asset, and debt distribution, as well as matters concerning child custody arrangements.
When to Consider A Prenup After Marriage
The Georgia Supreme Court case of Spurlin v. Spurlin, 289 Ga. 818 (2011) highlights the types of 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 engaging in an extramarital affair, the couple later reconciled and resumed living together, prior to the divorce being finalized.
To protect themselves in the event of another breakup, the couple entered into a reconciliation agreement, preemptively settling future issues regarding division of marital property, alimony, and child custody. (It is important to note that concerning custody matters, the court reserves the final right of decision and any arrangement agreed upon must also be in the best interests of the child.) A reconciliation agreement is an important option to consider to protect yourself in the following situations:
- For couples who agree to reunite temporarily 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.
Is There One Really Good Reason Why You Should Get a Prenup?
Society is Diverse but the Court System Does Not have that Luxury
In Georgia, at least, the reason you should get a prenup is perfectly clear. As a practical matter, the courts in Georgia essentially begin with the presumption that income and assets acquired during the marriage are treated as if we were still living in the 50s when most American families looked like the Cleavers in Leave it to Beaver. In case you are too young to recognize that reference, it is a black-and-white American television sitcom broadcast between 1957 and 1963 starring Beaver’s parents, June and Ward Cleaver. The show attained iconic status with the Cleavers exemplifying the idealized household in America -- the marriage was likely consummated while the parents were young and lasted decades and there was a bread-winner father, a full-time stay-at-home mother, and dependent children.
You may still see families like these in our society. However, the culture we live in is much more diverse. Most families now have two breadwinners and/or the wife might be the breadwinner. This may be a second or third marriage for one or the other and/or the parties may have gotten married later in life after they built their careers or businesses. There may not be any children of the marriage. Given that diversity, an initial presumption that all income and property are from equal efforts of both parties makes no sense to most clients hearing from their divorce attorney for the first time. The battle that subsequently ensues in pursuing justice is emotionally and financially draining.
Five Ways a Prenup Can Benefit a Marriage
Prior to marriage, many parties consider entering into a prenuptial agreement, a contract between two people that allows them to predetermine in the hopefully unlikely event of a divorce, how they will divide their premarital property and the property they will acquire during the marriage. This agreement is frequently referred to as a “prenup.” Such an agreement could also contain terms as to whether either party will be entitled to alimony and the outcome of several other issues.
The only areas that cannot be resolved in advance through a prenup are matters involving child custody and child support. Negotiating a prenuptial agreement prior to marriage when each party presumably loves the other and wants to be fair to each other can save both parties a lot of money and stress if a divorce later occurs.
Some engaged couples are hesitant to enter into a prenup. A person may be reluctant to ask his or her betrothed to sign a prenup because he or she believes it would hurt the marriage or erode trust between the parties. In reality, a prenup can not only ease the pain of any potential future divorce, but it can also strengthen the trust between the parties and enhance a marriage.
Prenups Encourage Honesty
It is a sad truth that approximately 50 percent of all marriages end in divorce. Some parties choose to ignore that divorce is a potential outcome. Therefore, they refuse to consider a prenup. Some also believe that it would be unromantic to request a prenup. However, asking your future spouse to consider a prenup is a matter of honesty. It brings the reality of the possibility of divorce into the open and forces the parties to concede that their relationship could end. It also forces a couple to acknowledge that if divorce does occur, it will create a series of challenges for both of them. By discussing a prenup, a couple can have an honest dialog about their state of financial affairs, their assets, and how they would like to deal with such financial issues if a divorce ultimately happened. These communications can lead to a frank conversation that could strengthen a relationship.
Prenups Can Help a Couple Start their Financial Lives Together
One of the leading causes of divorce is arguing over money. We see it all the time. Ideally, having a prenup would enable a couple to avoid some of these arguments. In drafting a prenup, the parties can have an open, candid talk about their financial situations. This can help them budget and decide how to blend their finances, as well as giving them the typical benefits of a prenup. The disclosures involved in drafting a prenup allow a couple to be proactive about their financial future together.
Prenups Can Protect You in the Worst-Case Scenario for Marriage -- Divorce
As it relates to marriage, the worst-case scenario is divorce. Making the heartbreak even worse is a long, expensive divorce. Many divorces end up costing tens of thousands of dollars in legal fees even when the property in dispute is barely worth that much. A prenup can help streamline the divorce process and help prevent a drawn-out, costly divorce. While it is often a difficult subject to address with the person you are about to marry, talking about a prenup is a moment of emotional honesty. It compels the parties to consider what is realistically possible. That conversation can help prevent an emotionally and financially devastating divorce trial. It is best to think and plan ahead.
Prenups Allow You to Make Your Own Rules and Take Control
When a person files for divorce without a prenup, the outcome of that action is uncertain. While a person can make a settlement offer to his or her spouse to resolve the matter, the spouse is under no obligation to accept such an offer. If a couple cannot reach a settlement after a long costly, invasive, and stressful period of discovery, they will be given a trial. At trial, all the power lies with the presiding judge, and the outcome is uncertain, as opposed to a prenup, in which the parties can make their own rules on how they will divide their property and their debts, and how alimony, if any, will be determined. While the issues of child custody and support cannot be determined in a prenup, every other aspect of a divorce can be resolved in any way the couple sees fit. With a prenup, you can set the rules up as you like and you choose what happens. In the absence of a prenup, you may have to live by the judge’s decisions regardless of how right or wrong you find those decisions to be.
Prenups Can Discourage Conduct Detrimental to Marriage
When you draft a prenup, with the exception of issues related to children, you and your future spouse have the ability to set the rules in almost every conceivable manner. Even penalties for conduct detrimental to the marriage can be added. For example, a prenup can include a provision that if either party commits adultery, they will forfeit any claim they would have to alimony or attorney’s fees in a divorce. Everyone would like to believe that his or her spouse will be faithful to them. However, that is unfortunately not always the case. A prenup can help encourage the parties to remain faithful to each other, or else they could suffer economic consequences in the divorce.
To enter into a prenup or even discuss one with your future spouse requires a person to take off the rose-tinted glasses of love and consider that nearly half of marriages end in divorce. The dissolution of your marriage is not something you hope will happen, but that situation may very well occur, despite the best intentions of both parties. Drafting and signing a prenup eases the pain should that worst-case scenario unfold. It lets you game the system by crafting a suitable end to a bad situation and, by resolving most of the issues in advance, limits the power that strangers, such as attorneys and judges, will have on your relationship.