Prenuptial agreements (also known as antenuptial agreements) are generally enforceable in Georgia. These agreements are typically used when people who have accumulated substantial assets marry later in life. Even though an individual’s property accumulated prior to the marriage does not automatically become marital property subject to division, people sometimes wish to specify what property they had before the marriage and provide for the treatment of that property.
Prenuptial agreements can also be used to simplify a divorce by providing how marital property will be divided should a divorce occur. For example, an agreement that marital property will be divided evenly may simplify the divorce proceedings.
Prenuptial agreements should be discussed and prepared well before the wedding so that both parties have time to think about what they are doing. Springing a fully drafted prenuptial agreement on someone the day before the wedding is not fair and will not be looked upon favorably by the court if the times comes to enforce the “agreement.” Both parties should be represented by counsel and full disclosure of all assets and income is mandatory.
Judges do have discretion to reject a prenuptial agreement. The court uses the following criteria in determining whether to enforce and prenuptial agreement:
- Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable?
- Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
If the judge finds that any of these criteria apply, the judge can declare the agreement void.
Of course, most people find it difficult to contemplate a divorce at the time they are getting married. Often people who enter into a prenuptial agreement have been previously divorced. The unpleasant experience of their prior divorce leads them to plan an easier exit from their next marriage.