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How To Create An Enforceable Prenuptial Agreement


When you are in the process of planning for your wedding and are considering a prenuptial agreement, or are interested in finding out how one may help you, our Atlanta family law attorneys  can talk you through the pros and cons.  We know that it may be difficult to focus on the terms of that prenuptial agreement that contemplates a possible divorce  while you’re in the process of  planning your wedding. We also know that prenuptial agreements are not the most romantic part of the wedding planning process.  Yet we also know how critical prenuptial agreements—also known more commonly as prenups, or sometimes as premarital agreements or antenuptial agreements—can be in the event of a divorce. Accordingly, when you consider  a  prenuptial agreement, it is critical to fully understand how it work and if you decide to move forward with  a prenuptial agreement it is important to ensure that the agreement will be enforceable years down the road if needed. How can you be sure that you are entering into an enforceable contract that will allow you to protect your assets in the event of a divorce? Consider the following elements of an enforceable prenuptial agreement under Georgia law.

Ensure That the Agreement is in Writing and Signed by Both Parties 

Under Georgia law, prenuptial agreements must be in writing, must be signed by both parties entering into the contract (i.e., both spouses to-be), and must have two witnesses. These basic requirements are necessary to ensure that the agreement is enforceable in the event of a divorce.

Disclose Any Relevant Information Up Front to the Other Party 

When Georgia courts are faced with the question of whether an existing prenuptial agreement is enforceable, the court will look at three major factors. According to the Georgia Supreme Court, those factors include the following:

  1. Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
  2. Is the agreement unconscionable?
  3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

With regard to the first factor, you will want to work with an attorney to ensure that you have taken all necessary steps in crafting and executing the prenuptial agreement.  You want to make sure your spouse cannot raise the first factor as a reason to invalidate the agreement, and claim that the agreement was entered under fraud, duress, or mistake, or that you misrepresented or did not disclose material facts. When it comes to concerns about fraud, mistake, or misrepresentations, you should be certain to disclose any relevant financial information up front.  Be certain that the other party knows about all aspects of your financial circumstances before you both sign the agreement.

Give Adequate Time for the Contract to Be Reviewed

Still looking at that first factor, you should be sure to give the other party a significant amount of time to review the agreement with his or her attorney to avoid any suggestion that the other party entered into the agreement too quickly, or that he or she felt forced to enter the agreement shortly before the wedding, which could later lead to an allegation of duress.

Consider Terms That Are Fair to Both Parties 

In order to prevent having your prenup invalidated due to unconscionability—the second factor that courts consider—you should consider terms that are fair given both parties’ circumstances as you are entering into the agreement and into the marriage. Your lawyer can help you to determine what is equitable and fair. Be open to negotiation with your soon-to-be spouse.

Contact Our Atlanta Family Law Attorneys 

Our Atlanta family lawyers can speak with you about prenups in general, as well as ways to minimize the chance of having your prenup invalidated by the courts. We have years of experience assisting clients with premarital agreements and their enforceability. Contact Kaye, Lembeck, Hitt & French to learn more about how we can assist you.

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