What Does a Prenup Do? And Why Should You Consider One?

Marriage is one of the most monumental commitments most people make. As the saying goes, “two become one” binds you and your partner into a social and economic unit. That’s why it’s important to remember that your vows aren’t merely declarations to your spouse—they’re also a binding legal arrangement.

After you sign the marriage license, the state becomes the arbiter of your relationship. Couples will be subject to Georgia’s laws on divorce and property division—so if you later get divorced and don’t have a prenup, you will be held to the state’s version of the contract. So precisely what does a prenup do?

Most couples don’t anticipate requiring a prenup, but the truth is that no one can guarantee the future. In the event of a divorce, a prenuptial agreement can protect the interests of both individuals’ property, investments, and financial interests. It can also prevent an acrimonious, drawn-out, and expensive legal process in the future. A prenup is a critical aspect of planning for couples that want to structure their marriage agreement themselves rather than accepting the state’s terms.

The Role of Prenuptial Agreements in Georgia

Every prenuptial agreement is unique. A prenup intends to address the specific desires and situation of the couple involved—though any prenup will cover basics like the rights and responsibilities of both parties, the division of individual property held before the marriage, and arrangements related to property acquired during the marriage. Having these terms in place helps provide clarity, not only in the event of a divorce but also during the marriage.

Usually, that document identifies exactly what is marital and what is separate […] Or in certain situations, who gets what if a divorce happens or if the other party commits some type of bad behavior. So, it [the prenup] kind of gives you more of a guideline of how we’re going to do the divorce. — Dominic Jones, Stearns-Montgomery & Proctor

What Does a Prenup Clarify?

Every prenup will touch on some key contentious issues. Largely, these are financial in nature—your relationship with your spouse is personal. Still, the economic division of marriage (and divorce) falls under the state’s purview if not clarified beforehand.

• Debt protection: Under Georgia law, you can become financially responsible for your spouse’s debt. A prenup lets couples protect themselves from incurring the other party’s obligations.
• Fairness: Drafting a prenup offers a chance for an honest conversation about asset protection, interests, and expectations. Attorneys for both sides can then ensure that the couple is creating an equitable agreement.
• Predetermined marital property: The state will do it for you if you and your spouse don’t determine what constitutes marital property. Protect your interests by agreeing on what you consider jointly owned and what remains with each individual.
• Reduced complexity: In the event of a split, couples with a valid prenuptial agreement can avoid some of the logistics of the dissolution at a time when feelings may run high. This legal document can save couples thousands in court costs, lawyers’ fees, and lost property.

Some couples view the idea of a prenup as taboo; however, much of the talk surrounding prenuptial agreements stems from the social stigma surrounding conversations about money.

Firstly, these agreements aren’t just for the wealthy—they can protect anyone from homemakers to breadwinners. Also, contrary to widely held beliefs, prenups often prevent one party from losing everything. The intention behind prenuptial agreements is to ensure a fair division.

Finally, they do not symbolize a lack of commitment. A prenup implies that a couple desires protection for each individual—regardless of future circumstances.

Key Considerations for Drafting a Prenuptial Agreement in Georgia

We’ve addressed what a prenup traditionally covers—but it’s equally important to understand what it cannot. Seeking appropriate legal counsel is crucial because it can be thrown out if the court deems a prenup invalid.

To ensure the agreement’s validity, it should be in writing, signed, witnessed, and filed with the county superior court clerk’s office. Also, both parties must meet the minimum competency requirements to enter into a contract.

Let’s say, it wasn’t a valid contract. There was no consideration, which means one party was wholly favored over the other one. You also have to look at the legal requirements for the prenup […] Also, is it unconscionable? That’s another thing. Is it fair? Is it equitable?
— Dominic Jones, Stearns-Montgomery & Proctor

Prenups cover matters such as debt protection, asset division, and inheritance—but they can extend further, addressing financial planning considerations like household bills, joint accounts, businesses, or certain purchases. On the other hand, they cannot contain:

• Provisions encouraging divorce
• Illegal requirements
• Agreements on child support/custody
• Details on interpersonal matters, such as child rearing, domestic labor duties, or relationships with in-laws

Bringing up the idea of a prenup may initially upset your partner, so broach the subject with caution, compassion, and willingness to accept suggestions. Explain the benefits and your desire to protect your partner’s interests and your own. Highlight the fact that they will have a voice in drafting the agreement.

Other Legal Considerations for Marriage and Divorce in Georgia

Georgia generally considers assets acquired before the marriage solely owned unless they become commingled with marital property. Also, inherited items, gifts, and other individual possessions are generally not considered jointly owned, even if acquired during the marriage.

However, factors like the duration of the marriage, individual earning capacities, assets, debts, living standards, physical condition, and the reason for divorce can further impact the ultimate division of property.

Let’s just say, I inherit a piece of property and my husband has helped me fix it up. And now we have increased the equity in the house. Well, my husband still may not be entitled to the house—but now he may be entitled to some of the equity out of the house.
— Kimbley N. Puckett, Stearns-Montgomery & Proctor

Given these complexities, a validly executed prenuptial agreement can help you arrive at a straightforward divorce outcome. The legal document provides a written blueprint to guide the ultimate division of assets rather than hinging your division to mediation or the court.

Plan Your Future in Full: Consider a Prenup — With the Experts at Your Side

It might seem counterintuitive, but establishing a prenuptial agreement can be the first step to a long and happy marriage. So, before the big day arrives, ensure you and your future spouse have an agreement that will protect you both—no matter what’s to come.

Of course, the importance of this agreement necessitates professional counsel. Reach out to the experienced attorneys at Stearns-Montgomery & Proctor to help you protect your happily ever after.