What is a Prenuptial Agreement?
Within the context of Georgia law, a prenuptial agreement (also known as a premarital agreement or ante-nuptial agreement), is a contract between individuals who are intending to marry that is executed prior to the marriage. A prenuptial agreement defines the individual and mutual rights of spouses in terms of property and financial responsibilities and obligations during and after the marriage . A prenuptial agreement may allow an individual to protect their assets, property, and interests going in to the marriage, such as a business or investments. Within the agreement, the parties may lay out what assets and wealth belong to each party individually and which assets may be considered communal and marital assets. Another important function of prenuptial agreement contract is that it can define what should happen to marital property if there should be divorce or death of one spouse.
What Essential Elements are Required in A Georgia Prenuptial Agreement?
The law in Georgia requires that specific components are met for a prenuptial agreement to be valid. First, all agreements must include certain basic provisions, which are discussed below. Second, both partners are required to provide voluntary consent to the agreement. Third, the agreement must be notarized.
Section 19-3-502 of the Georgia Code outlines the essential provisions that must be included in the prenuptial agreement:
- (1) The rights and obligations of each of the parties relating to the ownership and disposition of their respective property and any provisions made with respect to the right of either party to joint or separate custody of children, if any, which the hopes to have.
- (2) The right of either party to mortgage, manage, transfer, abandon, replace, encumber, control, dispose of, or otherwise exercise control over property, if any, which as to the value, equity, or effective control would otherwise be vested in the other party as a result of the marriage.
- (3) The right of either party to the management, control, benefit, and use of any property or services whichever the other party is obligated or authorized to make available to the party or to the children, if any, of the parties.
- (4) The right of either party to acquire property or services in consideration of the marriage.
- (5) The right of either party to determine matters of faith, religion, and church affiliation for himself or herself and any children, if any, of the parties.
- (6) A designation as to which party will be responsible for the marital debts, if any, incurred during the marriage.
- (7) The terms and conditions under which maintenance will be terminated, if terminated; the amount of maintenance, if maintenance is to be paid; and the duration of the payment of the maintenance. The agreement may specify that there shall be no maintenance.
- (8) The amount and conditions of an inheritance by either party should the other party die during the marriage.
- (9) The term of the marriage, if the agreement is contingent on the parties’ cohabitation for a fixed period of time.
- (10) Provision for the modification and waiver of the rights of a surviving spouse under the laws of this state or any other jurisdiction.
Georgia Code Section 19-3-502 also sets forth guidelines for when a prenuptial agreement is enforceable. The agreement will not be enforceable when a party shows that:
(1) That party did not execute the agreement voluntarily;
(2) That party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(3) That party did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond or instead of such disclosure;
(4) That such terms or considerations of the agreement rendered it unconscionable when the agreement was executed; or
(5) That such terms or considerations of the agreement are unconscionable at the time of filing or entry of judgment.
Benefits of Using A Prenuptial Agreement Template
Utilizing a template for a Georgia prenuptial agreement can provide several benefits for those looking to create a prenup. First and foremost, these templates ensure legal compliance for the document itself. They also save time in the long run by reducing the time it takes you and your spouse-to-be to discuss your options and alternatives with your attorney. This expedited process can also reduce your legal costs. Further, because you and your spouse will have a template to review together before bringing it to your respective attorneys, you might reach more of an understanding about how you want the agreement to function, making it more likely to be approved on the first attempt.
How to Make a Custom Prenuptial Agreement in Georgia
When it comes to preparing a prenuptial agreement template in Georgia, customization is the key to ensure that the contract meets your specific needs and legal requirements. The process of creating a tailored prenuptial agreement involves several steps designed to address each individual’s unique situation and preferences. An important aspect of customizing a prenuptial agreement is to obtain legal advice from a qualified attorney. Legal counsel can help couples understand their options, the implications of specific provisions, and how the agreement may affect their future. It’s essential to provide your attorney with all relevant financial information, including any assets, debts, and potential income sources, so that they can draft an agreement that accurately reflects your situation.
Once you have your initial consultation with an attorney, you will need to work together to create a detailed list of all the assets, debts, and general property that you both legally own. It is important to include documentation for any major assets such as real estate, investment accounts, stocks, and business interests. A complete and accurate inventory will lay the foundation for the remaining steps in the customization process.
Next, you will draft the list of contents, removing any items that you wish not to include in the agreement. This can include things such as specific property exclusions, debt provisions, inheritance stipulation, and the treatment of assets acquired following the marriage. After these have been removed, you can begin to agree on the contents of the prenuptial agreement template. Make sure that you work closely with your attorney and partner so that all the provisions are understood and properly documented.
Once you have worked through the details and have agreed on the contents, it is time for you and your fiancé to sign and date the agreements. Having them notarized is the best way to cover all your bases. Then we suggest that you both retain a copy of the document and originals should be stored in separate locations. If and when the time comes to file for divorce, you need to have multiple copies on hand to help make the settlement process as smooth as possible.
Frequently Made Mistakes in Prenuptial Agreements
Inadequate consultation with an attorney is one of the most common mistakes people make when dealing with prenuptial agreements. Even if both parties are eager to sign an agreement, it’s important that each spouse seeks qualified legal counsel. By each retaining their own attorney, you can be assured that the contract will be legally enforceable. Some clients may not want to hire an attorney, but even if they do, they may seek the counsel of a relative or friend who thinks he or she can do it all themselves. Another mistake many people make is the use of free forms or ones they found off the internet. All 50 states have different laws regarding prenuptial agreements and Georgia has its own laws that define its use. Another common oversight is the understanding of full financial disclosure . Under Georgia law, there must be full financial disclosure by both spouses and the contract must be fair. Sometimes an individual with more wealth will try to hide their assets as a means to take advantage of the other. In this scenario, it’s not uncommon for the other spouse to object to the agreement and file for an annulment. To prevent this from happening, full disclosure must be given by both spouses. It’s also important for the agreement to be executed or signed at least 30 days prior to the wedding. An agreement that’s been signed and sealed on the day of the wedding may be considered a contract signed under coercion. Heeding this advice will help you to avoid some of the most common pitfalls associated with prenuptial agreements.
How Are Prenuptial Agreements Enforced under Georgia Law?
Georgia law offers a convenient option for a couple considering marriage to create a prenuptial or "pre" nuptial agreement that defines the status and distribution of their assets in the event of divorce. A prenuptial agreement in Georgia must be in writing and be either voluntarily signed by both parties or signed by one party under the threat, or "undue influence," of adverse action by the other party. It is advisable not to sign such an agreement without adequate time to review the document and weigh its consequences.
Georgia law will only uphold a prenuptial agreement that is conscionable, or fair, at the time of signing and enforceable, or acceptable, at the time of divorce. Perhaps the most critical issue is conscionability. Georgia has defined this as requiring full and fair disclosure of each party’s debts and assets. Therefore, if we can demonstrate that full and fair disclosure was not made to either party, it is possible to have the agreement set aside or declared invalid in the event of a divorce. An example might be a spouse hiding bank accounts or business interests from the other party in an effort to keep those assets out of the settlement agreement.
There have been previous cases in Georgia where courts have ruled that a prenuptial agreement was conscionable, despite the fact that one spouse did not have an attorney and relied on the representations of the other spouse regarding the agreement. In other words, if we can show that the parties engaged in fair negotiations over a prenuptial agreement, that may be enough to prove that the agreement was conscionable. Notwithstanding conscionability, the law requires a prenuptial agreement to be acceptable at the time of enforcement. This requirement is intended to prevent a spouse from agreeing to give up the right to alimony, only to later decide that he or she needs alimony to survive. A case in point would be the case of a disabled person who marries a wealthy person knowing that he or she may need nursing care in the future. If the disabled person agreed to waive alimony, there could be trouble if the disabled person needed alimony later, while the other spouse was still healthy and strong. To prevent these types of future scenarios, Georgia courts will not enforce a prenuptial agreement that proves unconscionable at the time of enforcement. For this reason, it is important to consider all of the factors involved before entering into a prenuptial agreement.
What Should I Do if I Have A “Challenged” Prenuptial Agreement?
When a Georgia prenuptial agreement is contested, it can present complexities that require a knowledgeable family lawyer. While mediation is often the preferred method of resolution, it’s not always the best option, particularly when an individual must protect themselves and their assets. Knowing the legal recourses available to you if a prenuptial agreement is contested provides the peace of mind that is necessary to thrive in this time of emotional distress.
Mediation
Though mediation can be an effective tool in resolving marriage conflict, prenuptial agreements can have certain provision that require deeper exploration, particularly in a contested situation. If, for example, a party requests additional disclosure or clarification of information, intervention may be necessary without prompting the court system. This may also be true for parties who do not fully understand the implications of their prenuptial agreement.
Arbitration
If the language of the prenuptial agreement specifies that a dispute must be settled in arbitration, then this process cannot be avoided. To avoid the tumult and expense of litigation, the court will likely grant the request for arbitration, even if one party would prefer to have their case heard before a judge.
Litigation
In the unfortunate event that pre-dispute resolution methods are unsuccessful, it may be necessary to pursue a trial by litigation. In a court proceeding, the judge will hear arguments from both parties before making a decision regarding the enforceability of the prenuptial agreement.
Ultimately, any court hearing will determine the enforceability of the prenuptial agreement, what assets are included, and what obligations were entered into by both parties during and after the marriage.
Where to Obtain A Real Prenuptial Agreement Template in Georgia
The Internet is a trove of resources, and the same goes for places where to find prenuptial agreement templates. However, just because something is available online, does not mean it is legally viable or even trustworthy. There are plenty of scams out there, and plenty of less-than-viable websites offering pre-made agreements and documents for use. Therefore, it becomes imperative that Georgia couples use a vetted source for their prenuptial agreements.
"Hot" items, whether it is a hot new brand of sneakers or the latest bestselling thriller novel, are often not legal best-sellers. Documents that are put together in this way are often complicated by non-relevant information or improper advice, such as utilizing a prenuptial agreement template from outside of Georgia for use in the state. Any reputable firm will offer the following: Legal firms, particularly those that focus on family law, are a great place to find prenuptial agreement templates. Firms like these have prenuptial agreement templates that are vetted particularly for use in the state of Georgia. They also have the experience, the legal education and the resources to help you draft the most advantageous, legally sound document for your upcoming marriage. Occasionally, these legal firms may provide template forms on their websites, but there is usually an associated cost (like payment for a consultation or document preparation) to obtain them. This makes sense, of course , but be forewarned that a legal agreement is suggested to be valid only after having been prepared, reviewed and finalized by an active practicing attorney. Even with a template, you still need the benefit of an attorney’s experience and knowledge. Sites like PreNups.com and Nolo.com offer templates for all of your domestic legal needs, including prenuptial agreements and individual estate planning documents. Although neither firm is based in Georgia, both have a Georgia law state-approved option; on Nolo.com, for instance, upon selecting Georgia as your state of residence, the user is redirected to an accurate state-specific template to ensure they are getting the proper forms for their situations. Although many people want to save money when it comes to preparing legal documents (wedding expenses can add up quite quickly), it can be a wiser idea to hire a reputable attorney to prepare your prenuptial agreement instead. The document is designed to be an intricate set of rules and obstacles that dictate how property is divided in the event of a divorce. Laws surrounding these subjects can vary from state to state, so although templates can be useful for people, you are always advised to have your prenuptial agreement reviewed by an attorney with a family law focus. Additionally, some more costly prenuptial agreement template website subscriptions can reach up to $100 per month. This is money that would have been better used hiring an attorney who would draft the agreement to your specific needs.