Pre and Post Nuptial Agreements in Georgia
In Georgia, a "pre-nuptial" agreement, a/k/a an "ante-nuptial" agreement, is a contract entered prior to marriage that will set out financials and address the division of marital property (assets acquired during the marriage from the labor of each spouse) and other matters in the event of divorce. See, generally O.C.G.A. section 13-3-1 for essentials of a contract under Georgia law.
Atlanta Prenuptial Agreement Attorney Russell Hippe encourages couples to enter a fair agreement designed to preserve the marital estate for the parties (not lawyers) and minimize the expense, stress and unpleasantness of an unfortunate divorce. He is skilled at drafting these and charges a reasonable flat fee.
These agreements should be carefully drafted by an Atlanta divorce attorney and should contain full disclosure of each parties' financial condition. It is best to attach net worth schedules showing all assets, liabilities and the income of both. See, Lawrence v. Lawrence, 289 Ga. 309, 687 S.E.2nd 421 (2009). If the parties' intent is clear on all material terms, and there is a full financial disclosure, these agreements are ordinarily enforced. See, Newman v. Newman, 291 Ga. 635, 732 S.E.2nd 77 (2012) (pre-nup enforced even though parties made handwritten insertions after execution). Regarding execution, it is best to have two witnesses (one a notary) to attest each signature. See, Fox v. Fox, 291 Ga. 492, 731 S.E.2nd 676 (2012). See also, O.C.G.A. section 19-3-62.
If there is a challenge to validity, the Court will ask: (1) was the pre nup obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts, (2) is the agreement unconscionable, and (3) have the facts and circumstances changed since execution so as to make enforcement unfair and unreasonable. See, Sides v. Sides, 290 Ga. 68, 717 S.E.2nd 472 (2011). The party seeking to enforce the agreement has the burden of proof. See, Lawrence, supra. The judge can enforce in whole or in part.
A prenuptial agreement will simplify a divorce and, if drafted correctly, can dramatically reduce costs, stress and drama. For example, it can address and/or include:
- Alimony. The agreement can state what the conditions are for a spouse to receive and under what conditions.
- Property Division. The agreement can state, for example, that the parties will agree to divide the marital estate - all marital assets and debts - evenly (50/50).
- Retirement Accounts. The agreement can address how marital contributions to retirement accounts or pensions will be handled. If not addressed, these contributions are part of the marital estate.
- Business Interests. The agreement can address how any claim against the ownership interest of the other in any LLC, partnership, or closely held corporation will be handled. (Appreciation in the value of this ownership interest during the marriage derived from the labor and efforts of the working spouse is part of the marital estate).
- Attorney's Fees. To control costs, the agreement can state, for example, each party is only entitled to certain sum for attorney's fees from the marital estate and is not entitled to further sums absent a showing of good cause.
- Enforceable Collaborative Process. Although not customary, there is no reason why an intelligent couple could not agree to an enforceable collaborative process involving transparent document exchange, a custody evaluation, if requested by either, and an early mediation, all within the first few months of a filing, so as to facilitate an early settlement.
- Confidentiality. The agreement can further provide pre-set confidentiality protection as to documents (i.e. sensitive non-privileged medical records) asset disclosure and other potentially embarrassing or professionally harmful evidence.
- Any Other Reasonable Terms. Under Georgia law, an agreement is enforceable if it shows a free meeting of the minds on all essential terms, has terms that are clear, has consideration and mutuality, and is not otherwise unconscionable or against public policy. See, Zurich American Ins. Co. v. General Car & Truck Leasing System, Inc., 258 Ga. App. 733, 574 S.E.2nd 914 (2002).
Post-nuptial agreements are simply pre-nuptial agreements executed after the marriage. If they are executed after a divorce filing, and are executed in conjunction with a reconciliation, they are referred to as reconciliation agreements, typically. They generally set out settlement terms in the event the divorce is refiled within a certain period of time.