Prenuptial and Postnuptial
A prenuptial agreement is a contract between two parties who intend to get married regarding how certain matters will be handled in the event of divorce. Prenuptial agreements allow a couple to agree to their own system for division of property and alimony regardless of the default system in whichever state they may get divorced in. A postnuptial agreement is similar to a prenuptial agreement except that a couple enters into the agreement after they are already married.
Who Should Get a Prenuptial Agreement
Most people think of prenuptial agreements as a tool that only wealthy people use, but a prenuptial agreement can be beneficial to anyone who wants to protect his or her financial interests in the event of divorce. Most people do not realize that in Georgia, all the income a person earns during his or her marriage is marital property, and in the event of divorce, can be divided with his or her spouse however the Court believes is fair. Prenuptial agreements allow the couple to predetermine how property will be divided at divorce so that neither party is surprised or unprepared for the result. Prenuptial agreements not only help ensure a positive substantive result in the event of divorce, but also minimize the risk that the couple will have an expensive and drawn out divorce. Prenuptial agreements can be particularly beneficial to people who own significant assets prior to the marriage, who believe their assets will grow significantly during the marriage, who own a business, or who have children from a prior marriage.
Issues Addressed in a Prenuptial Agreement
A prenuptial agreement defines which property of the parties will be separate property and which will be marital property. The agreement further defines how marital property will be divided in the event of divorce, and can single out certain significant assets, such as the marital home, for particular treatment. A prenuptial agreement also addresses which debts of the parties will be considered separate and which will be considered marital, and who will be responsible for the marital debts in the event of divorce. Even if the couple is okay with the default state of the law in Georgia as to how property would be divided at divorce, a prenuptial agreement protects the couple because the law could change or the couple could relocate to another jurisdiction prior to a divorce.
A prenuptial agreement also determines whether or not either party will be eligible for alimony in the event of divorce. Further, the agreement can set a specific schedule for alimony, outlining the duration and amount of alimony a party would receive in the event of divorce.
Prenuptial agreements cannot address issues of custody or child support. In Georgia, custody is determined based on the child’s best interests at that time, which cannot be determined in advance in a prenuptial agreement. Child support is considered the right of the child, which cannot be waived by the parties in a prenuptial agreement, and is also determined by the parties’ financial situations and the child’s needs at the time of divorce.
A prenuptial agreement can be challenged for enforceability. Whether all or part of a prenuptial agreement will be found unenforceable is fact-specific, and an attorney can help analyze whether your prenuptial agreement can be successfully challenged or help craft a prenuptial agreement that mitigates the risk of its enforceability being challenged.
Factors such as how close to the wedding the prenuptial agreement was discussed or signed, whether each party had the opportunity to seek legal counsel, or whether certain facts were withheld while negotiating the prenuptial agreement may affect its enforceability. While a prenuptial agreement does not need to be fair, prenuptial agreements that are so imbalanced that they are unconscionable may not be enforceable. In certain circumstances, a change in facts since the prenuptial agreement was executed may make the agreement too unfair or unreasonable to enforce. Whether or not a prenuptial agreement will be unenforceable is a decision for the Court to make once the prenuptial agreement is challenged, but prenuptial agreements can be drafted to reduce these risks.
Seeking Legal Help
Whether you are seeking a prenuptial agreement or have been asked to sign one, The Ruthenberg-Marshall Law Firm can help negotiate a beneficial agreement and protect your interests.
For help with your prenuptial agreement, schedule a Legal Clarity Session with The Ruthenberg-Marshall Law Firm by calling 678-435-9069 or contact us here.