What Factors Determine the Enforceability of Prenuptial Agreements in Georgia?

What Factors Determine the Enforceability of Prenuptial Agreements in Georgia?

Aug 17, 2023 | Latest News | 0 comments

Prenuptial agreements can be difficult to think or talk about, as there’s an implication that the couple involved doesn’t expect the marriage to be successful, and that’s why they’re going through the prenuptial process. Many couples create prenuptial agreements and end up not using them. However, many other couples don’t create them and later strongly regret that. It’s better to be in the former camp.

It’s also essential to have a prenuptial agreement that’s legally binding and not easily challenged in court. Read on for what you need to know about creating an enforceable prenuptial agreement.

What Can a Prenuptial Agreement Protect?

To understand what makes a prenuptial agreement (casually known as a “prenup”) legally enforceable, it’s vital to know what can and can’t be covered in a prenup. An experienced family law attorney can go over the possibilities in more detail and tailored to your exact circumstances.

Prenups can include the following, whether it’s one or the other spouse who has them or if they each have them. This is not a complete list. If you have questions about items not on this list, contact an experienced prenuptial attorney who can provide legal guidance.

  • Owned property.
  • Retirement accounts opened and maintained prior to the marriage.
  • What will be considered separate property and marital property.
  • How property will be possessed, awarded or divided in the event of separation, annulment, or divorce.
  • How spousal support will be handled in the event of divorce.
  • How one spouse can be protected from the debts of the other or how debts will be managed, including the development of a payoff plan.
  • How spouses will be designated in terms of being beneficiaries of life insurance policies.
  • How the couple will be allowed to manage assets during the marriage.

Note that the prenuptial agreement only comes into effect once the couple is married. If the engagement is broken before the marriage happens, it has no bearing on the separation of property or issues of support.

What Can’t Be Included in a Prenuptial Agreement?

There are several things that can’t be included in a Georgia prenuptial agreement.

  • Child custody and support. A judge must determine these, so they can’t be covered in a prenup.
  • Personal preferences, such as where to vacation, who does what chores, or details of how any children will be raised.
  • Other domestic issues. Judges see these as frivolous and can use them as grounds for striking down the entire prenup. If a couple wants to set up a document detailing these kinds of things, it’s best if they do it separately from the prenup itself as an informal agreement.

What Other Factors Determine the Enforceability of a Prenuptial Agreement?

In Georgia, there are several factors that help ensure a prenuptial agreement is legally binding.

  • Both parties must be of age to enter a contract.
  • They each must be single and not related to each other.
  • They must be demonstrably mentally competent.
  • They must be truthful about both debts and assets and provide that information to each other. Concealing either from the other party could be grounds for striking down the prenuptial agreement if the offending party is the one seeking to enforce it.
  • Each party should have at least seven days to review the prenup. However, it is important to have a much longer time.
  • Each party should have an independent attorney review the agreement. This is important because if a divorce occurs and one of the spouses doesn’t have their own attorney review the document, the court could nullify it and specify different alimony arrangements.
  • The agreement must be in writing (oral agreements won’t be adhered to in court), and both parties must sign it.
  • Neither party should have been pressured to sign the agreement against their will.

Who Should Consider Getting a Prenuptial Agreement?

Prenuptial agreements can be valuable in a wide variety of circumstances, but in general, there are some specific situations in which they’re a must.

  • Either or both parties have property of some type (real estate, vehicles, jewelry, retirement accounts, etc.).
  • Either or both parties have debts (student loans, credit cards, medical bills, etc.).
  • There’s a financial imbalance between the couple, such as one having significantly more income or assets or more debts.
  • Either or both partially or wholly owns a business or have some type of business interest.
  • Either or both have previously been divorced and have legal commitments to that prior marriage (children, alimony, etc.).

What Should I Do if I Want to Set Up a Prenuptial Agreement?

Call Lunn Law LLC today at 770-762-4628 to set up a case assessment or client strategy meeting.. We know this can be a delicate situation. We’re here to help you protect your assets and future financial condition. An experienced, knowledgeable prenuptial agreement attorney can guide you to creating a legally sound and forward-thinking agreement.

If you’re engaged and your fiance has already drawn up a prenuptial agreement, it’s highly recommended that you have an independent attorney review it and compare it to your needs and goals.

We can provide that independent assessment for you, viewing the document through the lens of your future. We help clients with prenuptial agreements throughout the state of Georgia.