Prenuptial Agreements — What Can They Actually Do in Georgia?

As with so many other things in society, millennials are rewriting the rules. With a more equitable workforce (in terms of gender), marrying later in life, and a desire to hold onto hard-earned assets, prenuptial agreements are as popular as ever. It seems fiancés are discovering that prenuptial agreements are useful for more than just the ultra-wealthy. 

Functions of Prenuptial Agreements in Georgia

The most widely understood utility of prenuptial agreements is the ability for independently wealthy spouses to keep many of their assets after a divorce. Separate property, which is property owned by spouses before marriage, could become marital property through commingling. A prenuptial agreement could stipulate that certain separate property should remain that way, regardless of either spouse’s actions. 

Apart from deciding property division matters, prenuptial agreements may delineate how assets not yet obtained might be enjoyed during the marriage. For example, if a spouse joins the other spouse’s business as a manager, the business could become marital property. The spouses might want to choose who will get future income generated by the company.

What Prenuptial Agreement Cannot Do

This agreement is not usually able to completely shift any debts you had prior to your marriage to your spouse. Additionally, prenuptial agreements may not absolve either spouse of child support obligations or dictate future legal or physical child custody arrangements (not that many spouses would willingly give up custody before divorce anyway). 

Generally, prenuptial agreements in Georgia may not be so unfair and one-sided as to be unconscionable. Unconscionability is one of a handful of legal doctrines that could result in a judge striking down a prenuptial agreement. While it rarely happens, these agreements have been struck down for that reason. For instance, an unconscionable prenuptial agreement might require that one spouse surrender all marital property to the other spouse upon divorce and forfeit his or her right to post-divorce financial support. 

What Else Might Render a Prenuptial Agreement Unenforceable?

Besides unconscionability, Georgia courts might find prenuptial agreements to be unenforceable if: 

  • A spouse threatened the other spouse with violence or otherwise caused the spouse to be under duress; 
  • One spouse lied or concealed assets or material facts that affect the effectiveness of the prenuptial agreement; or
  • Either spouse’s circumstances change so dramatically that abiding by the agreement would be unreasonable. 

Each Spouse Needs an Attorney

Despite your feeling that you and your fiancé would never split up—after all, you are still planning the wedding—you cannot accurately predict the future. Prenuptial agreements are legally binding contracts that can have a significant impact on your future. Signing one without consulting with a quality Atlanta attorney is an enormous risk. 

A properly crafted prenuptial agreement can be quite beneficial for you and your children if you ever divorce your spouse. While prenups are not the most romantic subjects, it is well worth consideration. We would be honored to help. Call us today to set up an appointment.

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