Modern Marriage: Is a Prenuptial Agreement Right For You?Written on October 20, 2014
When two people marry, it’s usually with the idea that it will last for years and years. Divorce statistics tell us, however, that many marriages don’t always last. In this day and age, divorce can be a messy, drawn out process. It gets especially messy when there are substantial assets at stake, family estates, or even a family-owned business.
A divorce procedure can be very complex when it comes to dividing property. In Georgia, for example, marital property includes the assets and debts a couple acquires during marriage. If two people decide to marry, and one person has significantly more assets than the other, a prenuptial agreement should be something to consider.
A prenuptial agreement is a contract that protects assets one or both parties have prior to getting married. Nobody wants to assume their marriage is going to end in divorce, but those who have been through a divorce or have significant assets often want to protect themselves in the event things just don’t work out.
Prenuptial agreements aren’t necessarily for everyone. A young couple, just out of college perhaps, without many assets between them probably wouldn’t need to entertain the idea. Often times, people entering into a second marriage or those who have reached a level of financial success, carefully consider signing a prenuptial agreement. A pre-nup may be a good idea to protect family assets that have been passed down, or even a business that belonged to the individual prior to the marriage.
There isn’t a set of rules pertaining to exactly what can be covered. Things like alimony, how property will be divided and property rights are typically included. Child custody and visitation aren’t addressed in a prenuptial agreement. Those are things that will be decided by the judge during a divorce proceeding.
In the early 1980s, the Georgia Supreme Court ruled that such agreements could be upheld in the state as long as three details are met:
- A prenuptial agreement cannot be obtained through fraud, duress or misrepresentation.
- The agreement cannot be unconscionable. In other words: The agreement must be morally sound and fair.
- Would executing the agreement leave one person worse off financially than they were before the marriage? If the answer to that is yes, there’s a decent chance the courts will not uphold a signed agreement.
If a prenuptial agreement is challenged during a divorce, these are the questions the court will look at. That’s why anyone thinking about presenting an agreement to their future spouse should seek counsel to ensure the contract will withstand legal scrutiny in the event of a divorce. Conversely, if your fiancé presents you with a prenuptial agreement, you should have it reviewed by an attorney to make sure you will be treated fairly if the marriage doesn’t last.
No matter which side you are on, having legal counsel on your side is crucial. The attorneys at The Silverbach Group are here for you. You can reach us at 770-635-0334. Call us for a free consultation on a prenuptual agreement in Cobb County Georgia.