Prenuptial Agreements in Georgia

Looking to get married in Georgia but worried about what will happen to your assets in the event of divorce? A prenuptial agreement can help ease those concerns. But what exactly is a prenup, and who needs one?

In this guide, we’ll cover everything you need to know about prenuptial agreements in Georgia, including what they are, their benefits, common misconceptions, and how to talk to your partner about them.

What is a Prenuptial Agreement?

A prenuptial agreement, also called a “premarital agreement” or “antenuptial agreement,” is a legal document that spouses sign before getting married. It lays out how their assets and property will be divided if they ever get divorced or separate. Prenups can also cover other important topics, like spousal support and inheritance rights.

While prenups aren’t for everyone, they can be a useful tool for many couples. There are also alternatives, like postnuptial agreements (signed after marriage) and cohabitation agreements (for unmarried couples).

Benefits of a Prenuptial Agreement

Prenuptial agreements can offer several advantages for couples, some of which include:

Protection of Assets

A prenup can help safeguard assets that were acquired before the marriage, ensuring that they remain with the individual spouse and are not considered marital property. This can minimize conflicts in the case of a divorce and provide clarity on which assets are separate.

Reduction of Conflict

While nobody wants a marriage to end in divorce, a prenup can help ensure that if it does happen, the process remains amicable. By establishing the terms of asset division and spousal support beforehand, it minimizes disagreements and misunderstandings, providing both spouses with clarity and security.

Clarification of Financial Responsibilities

A prenup can outline the financial responsibilities of each spouse during the marriage, such as debt payments or management of joint accounts. This can help prevent conflicts over financial matters and promote openness in the relationship.

Who Can Benefit From a Prenuptial Agreement?

While prenuptial agreements can be beneficial for many couples, some may find them more necessary than others. Anyone who falls under the following categories should consider getting a prenuptial agreement:

Couples with Significant Assets

Couples with significant assets can benefit from a prenuptial agreement by protecting their individual assets in case the marriage ends in divorce. In the absence of a prenup, comingled assets acquired before the marriage can be considered marital property and subject to division between both parties in a divorce settlement. However, a prenuptial agreement can specify how these assets should be handled and kept separate from marital property.

Couples with Children From Previous Relationships

Couples with children from previous relationships can benefit from a prenup because it allows them to provide for their children’s financial security in the event of their death. Without a prenup, the surviving spouse could inherit the majority of the estate, potentially leaving less for the children from the previous relationship.

Couples Near Retirement Age

Couples who are near retirement age may have accumulated significant assets, including retirement accounts, over the course of their careers. These retirement accounts may represent a significant portion of their net worth and financial security, and protecting them in the event of a divorce may be crucial.

Business Owners

A prenuptial agreement can be particularly important for couples where one or both parties own a business or professional practice. In the absence of a prenup, the business may be considered marital property and subject to division in the event of a divorce. This can lead to significant financial losses, disruption of business operations, and even the potential loss of the business.

The Less Wealthy Spouse

A prenuptial agreement can benefit the spouse with fewer resources by providing financial protection in case of a divorce. If the less wealthy partner did not work during the marriage or had a lower income, a prenup can ensure that they are financially taken care of in the event of a divorce.

For example, a prenup can include provisions for spousal support or alimony. This can be especially important if one spouse gave up their career or put their own financial goals on hold to support the family during the marriage.

What Cannot be Included in a Georgia Prenuptial Agreement?

When it comes to prenuptial agreements, it’s crucial to understand that there are certain restrictions in place to ensure fairness and prevent misuse. With this in mind, let’s explore the details.

Child Custody & Child Support

In Georgia, child custody and child support cannot be part of a prenuptial agreement. These issues are determined based on the child’s best interests during a divorce. While a prenuptial agreement can lay out how assets and property will be divided, it cannot determine who gets custody of the children or how much child support will be paid.

Illegal or Unethical Terms

Any terms in a prenuptial agreement that are illegal or unethical will not be upheld under Georgia law. This includes any provisions that encourage or incentivize behavior that is against the law or violates public policy.

Incentives for Divorce

A prenuptial agreement cannot include provisions that incentivize or encourage divorce. For example, a clause that states one party will receive a larger settlement if they are the one to initiate the divorce would be unenforceable.

It is important to note that prenuptial agreements must be fair and equitable to both parties. If a prenuptial agreement is heavily weighted in favor of one spouse and the other party did not fully understand the agreement or sign it willingly, it may be considered invalid in court.

Are Prenuptial Agreements Enforceable in the State of Georgia?

Yes, prenups are legally binding in the state of Georgia, provided that they meet certain requirements. In order for a prenuptial agreement to be considered valid and enforceable in court, it must meet the following criteria:

• The agreement must be in writing. Georgia courts will not enforce an oral prenup.
• Both spouses must sign the agreement voluntarily. If one party was pressured or coerced into signing the agreement, it may not be considered valid.
• The agreement must be fair and reasonable to both parties. The agreement may be considered invalid if it is heavily weighted in favor of one spouse and the other party did not fully understand the terms or sign it willingly.
• The agreement must not violate public policy. Any provisions that are against public policy or encourage illegal behavior will not be valid.
• The agreement must be attested by at least two witnesses, one who must be a notary.

If a prenuptial agreement meets all of these criteria, it should be considered valid and legally binding in Georgia. However, it is important to note that even if a prenuptial agreement is considered valid, it can still be challenged in court. For example, if one party can prove that the agreement is no longer fair and reasonable, a court may choose to invalidate some or all of the agreement.

How to Talk to Your Partner About a Prenup

Discussing a prenuptial agreement with your partner may seem daunting, but most people agree that it is an important conversation to have before getting married.

When approaching the topic, it is essential to approach it with transparency and openness. You can start the conversation by discussing the benefits of having a prenuptial agreement, such as protecting your individual assets and reducing the risk of disputes.

It is important to emphasize that the prenuptial agreement is not a sign of a lack of trust or commitment, but rather a tool for planning and protecting both parties’ interests. You can also make sure that your partner understands that you are not asking for the prenuptial agreement to favor one spouse over the other, but rather to ensure a fair and equitable resolution in the event of a divorce.

Georgia Prenuptial Agreement Lawyer

If you’re getting married in Georgia and considering a prenuptial agreement, it is crucial to work with an experienced divorce attorney to ensure that your prenuptial agreement is legally valid and enforceable in the state of Georgia. At Atlanta Holistic Family Law, our experienced family law attorneys can provide you with reliable legal advice and guidance on the process of creating a prenup that meets your specific needs and protects your assets.

We offer a free consultation to answer your questions, discuss your options, and help you make an informed decision. Contact us today to schedule your free discovery call and take the first step towards a secure future with the peace of mind that comes with having a solid prenuptial agreement in place.

Please note: this information is not intended to serve as legal advice. It is solely meant to provide general information about prenuptial agreements in Georgia. It is important to consult with an experienced family law attorney to discuss your specific situation and to ensure that any agreements you enter into are legally valid and enforceable in Georgia.