Understanding Certain Pitfalls Related to Prenuptial Agreements in Georgia

By: J. Cale Rogers

Coleman, Chambers, Rogers & Williams, LLP

December, 2010

This article is intended for educational purposes only and is not intended, nor should be construed to provide legal advice.

Prenuptial Agreements are becoming more common in divorce practice, especially with the number of blended families and second marriages increasing with today's modern social standards. Prenuptial Agreements are generally enforceable in Georgia, unless it can be shown that: (1) The agreement was obtained through fraud, duress or mistake, or through misrepresentation or non-disclosure of material facts; (2) The agreement is unconscionable; or (3) The facts and circumstances have changed so much that enforcement of the agreement is now unfair and unreasonable.

The primary purpose of a Prenuptial Agreement, of course, is to set forth in detail how marital property will be treated (and hopefully protected, if the agreement is tightly drafted) upon the dissolution of the marriage. A carefully drafted Prenuptial Agreement will contain a full disclosure of each party's earnings, assets and liabilities at the time of the execution of the agreement. Such disclosures help prevent a party from later claiming that they were unaware of their spouse's net worth or earning capacity, if the enforceability of the agreement is challenged.

One common avenue to attempt to challenge a validly-executed Prenuptial Agreement is to assert that it was obtained under duress, or that one spouse didn't have the opportunity to have counsel review it prior to executing it. This argument is sometimes employed when the agreement is executed close in time to the wedding ceremony. To avoid this potential challenge to a Prenuptial Agreement, the document should be provided to your fiancé so that he or she has ample opportunity to review the agreement prior to the wedding ceremony.

Though not always practical, ideally both parties should be represented by counsel during the negotiation and execution of a Prenuptial Agreement. Some disgruntled spouses have challenged the enforceability of Prenuptial Agreements in the past based on their assertion that they were not represented in the process of negotiating the Agreement. The Appellate Courts have been less than receptive to these arguments, where the unrepresented party was given sufficient opportunity to obtain independent legal advice before it was executed but declined to do so. Another common ground upon which Prenuptial Agreements are often challenged concerns the failure of one spouse (often the spouse that has facilitated the preparation of the Prenuptial Agreement) to accurately and completely disclose his or her assets or financial circumstances in the Prenuptial Agreement.

There are also other issues ancillary to the preparation of a Prenuptial Agreement that should be given consideration prior to marriage. For example, the Federal Government has mandated that a spouse of an employee enrolled in a 401(k) tax-deferred retirement plan is the sole beneficiary of such account, unless the spouse signs a written waiver (perhaps after the marriage is consummated) relinquishing his or her rights to the account upon the death of the employee spouse. Simply identifying an individual other than your spouse pursuant to your beneficiary designation, perhaps a child from a prior marriage, as the beneficiary of your 401(k) account upon your death is likely insufficient to effectuate your intentions with respect to that type of retirement account. There is even an argument that any such written waiver must be executed after the consummation of the marriage, as the individual signing the waiver would not qualify as a spouse until after the marriage ceremony (well after the execution of a Prenuptial Agreement).

Having an attorney familiar with the law related to Prenuptial Agreements can assist you with protecting your premarital assets to the greatest extent allowed by Georgia law, and can further help prevent unnecessary future litigation in the event of a divorce. Whether you are considering getting married and wish to discuss the protection or your assets, or whether you have found yourself going through a divorce and would like an opinion concerning a Prenuptial Agreement that you entered into prior to your marriage, the attorneys at Coleman, Chambers, Rogers & Williams, LLP can provide you with the legal advice necessary to understand how Prenuptial Agreements are handled by Georgia Courts.

About the author: Cale Rogers is a partner and attorney with Coleman, Chambers, Rogers & Williams, LLP, in Gainesville, Georgia. The law firm of Coleman, Chambers, Rogers & Williams, LLP regularly handles matters related to prenuptial agreements and other domestic matters. The firm has handled or can handle domestic matters for those residing in almost all North Georgia counties including: Hall County (Gainesville), White County (Cleveland), Lumpkin County (Dahlonega), Gwinnett County (Lawrenceville), Dawson County (Dawsonville), Habersham County (Demorest, Cornelia) all of Northeast Georgia, and throughout the State of Georgia.

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