In carrying out arrangements made through an antenuptial or prenuptial agreement, the circumstances under which it was created are as important as those that occur when it is enforced. The Georgia Bar Association advises that the Supreme Court has outlined three basic criteria for evaluating enforceability of prenups:
1. Was the prenuptial agreement entered into willingly by both parties, without undue duress, and was it obtained without fraud or misrepresentation?
Under the Georgia Domestic Relations Code, both parties entering into a prenuptial agreement must do so willingly, with no intent to defraud or coerce the other. There must be a full disclosure of all property and assets, and both parties should be aware of their rights in consulting with a premarital agreement lawyer.
2. Is the agreement itself conscionable, constructed in a manner that is fair and equitable to both parties involved?
The GA Bar advises that unconscionability generally speaks to treating both parties in a just and reasonable manner. An example of unconscionability is a prenup after marriage in which one partner is deprived of all assets, while lacking the income or ability to properly support themselves.
3. Have the facts and circumstances under which the prenuptial agreement was executed changed considerably so as to make its enforcement unfair?
If there have been dramatic changes in the health or fortunes of either of the spouses since the original antenuptial agreement was executed, the court may deem it unenforceable.