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  • Prenuptual Agreements: Do You Need One When You Marry?

    Written on June 11, 2014

    When two people marry, it’s usually with the idea that it will last for years and years. Just listen to the traditional vows recited at marriages. Divorce statistics tell us, however, that many marriages don’t last until “death do us part.” Divorce can be a messy, drawn out process especially when there are substantial assets at stake.

    family law attorneys kennesaw gaDivorces can be very complex when it comes to dividing property. As a general rule in Georgia, marital property includes 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 that things just don’t work out.

    Prenuptial agreements aren’t necessarily for everybody. A young couple just out of college, without many assets between them, may not need one.  Often times, people entering into a second marriage or those who have reached a level of financial success, carefully consider signing a prenuptial agreement.

    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 ordered by the judge during a divorce proceeding.

    So exactly how enforceable are prenuptial agreements in Georgia?  In the early 1980s, the Georgia Supreme Court ruled that such agreements could be upheld in the state as long as three perquisites are met.

    1.  A prenuptial agreement cannot be obtained through fraud, duress or misrepresentation.

    2. The agreement cannot be unconscionable.  That basically asks that the question: Is the agreement morally sound and fair?

    3. 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 after a divorce, these are the questions the court will look at. That’s why anybody 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.