Is a Prenuptial Agreement a Good Idea?

If like most people, you are willing to do whatever it takes to ensure a lasting marriage, then yes, a prenuptial agreement is a good idea. Money is the leading cause of marital friction. Disagreements could arise over how to get along without much money or how to deal with an excessive amount of money. Prenups remove money from the equation.

Think of a premarital agreement as a life insurance policy. No one wants or expects to die young, but responsible people buy life insurance policies, especially if they have family members to protect. Likewise, no one (or almost no one) wants or expects a divorce, but responsible spouses get prenuptial agreements, especially if they have assets or heirs to protect. More on that below.

In as little as one office visit, a Marietta family law attorney can draft an enforceable and fair prenuptial agreement that places your marriage on a stronger foundation and also avoids contentious and expensive marriage dissolution proceedings, should the unthinkable happen. So, if you have people or property to protect, you should at least consider a premarital agreement.

What a Prenup Can and Cannot Cover

Above, we touched on the two areas a premarital agreement usually covers. Now, let’s dive in a little deeper.

By the book, the marital property division rule in Georgia is very simple. Assets or debts acquired before the marriage or by gift are nonmarital property. Everything else is marital property and subject to equitable division. However, unless the marriage only lasts a few months, commingling is a serious issue.

Student loan repayment is one of the most common examples. Assume Jack uses $20,000 from his paycheck (marital property) to pay his school debts (nonmarital property). Jill may be entitled to equitable reimbursement, which is probably $10,000.

Asset commingling is almost as common. Assume Jill owns a vacant rental house when she marries Jack. Her husband uses some of his savings, along with his professional skills as a property manager, to fix up the house and effectively market it. Depending on the additional facts, all prior and future rents, as well as the house itself, are probably now marital property. Additionally, Jack might be entitled to most, or even all, of that money.

Prenups avoid disputes. In the first example, Jill might be upset that Jack spends “their” money on “his” bills. In the second example, Jack might be upset if Jill uses rental house profits to buy herself a new Jaguar. Prenups make it clear that your bills are your responsibility, and my assets are my assets.

On a related note, prenups usually set spousal support limits. Most people include stairstep provisions. The longer the marriage lasts, the more relaxed spousal support caps become.

As circumstances change, the couple can easily partner with a Marietta family law attorney and modify the prenup terms.

Premarital agreements also cover inheritance and succession matters. Assume Jack has a son from a prior marriage. Jack wants this son to one day take over the family property management business. A prenuptial agreement, especially when combined with wills, trusts, and other executory documents, makes these wishes clear. That way, the ownership transaction is seamless and there are no hurt feelings.

Making a Prenup

You can probably Google “Georgia prenup” and find about a zillion forms which purport to be legally enforceable prenuptial agreements. However, there is no one-size-fits-all in this area. Unless premarital contracts meet certain requirements, they are unenforceable.

Written, Signed, and Filed

Don’t overlook these technical requirements. Marietta family law attorneys routinely convince judges to disregard prenuptial agreements because all the i’s aren’t dotted and the t’s aren’t crossed.

A premarital agreement is a single, written agreement. It’s not a chain of text messages or a written document that includes some informal “understandings.” There’s one major exception to this rule, which is also known as the Four Corners Rule, which is outlined below.

Furthermore, state law has very strict signing requirements. Both parties must sign the agreement at approximately the same time. Two witnesses must see the parties sign the agreement, and they must also sign it. Finally, the document must be filed in a superior court in one of the spouse’s county of residence.

Competency

Spouses are competent to make premarital agreements if they are old enough to marry, mentally competent, unrelated to each other, and not married to other people at the time.

Don’t depend on the marriage license to establish these facts. Under state law, first cousins can marry each other, but they cannot sign prenuptial agreements.

Asset/Debt Listing

The prenup must contain a complete list of all assets and debts. A mere recital that “I know what I’m signing” is good, but not enough.

Quite understandably, many people don’t want all their assets and debts to become public record. IN these situations, attorneys often use the incorporated-by-reference doctrine. The prenup or other contract, like a divorce decree, refers to a separate, non-filed document that lists all the appropriate information.

Independent Lawyer Throughout the Process

If one spouse had a lawyer, the other spouse must have a lawyer. If Jack pays for Jill’s lawyer, her lawyer isn’t truly independent.

Breaking a Prenup

We usually chuckle softly to ourselves when we see a report that a high-powered couple had an “ironclad” prenup. There’s no such thing. Some grounds for breaking a prenup in Georgia are rather unique.

Fraud or Mistake

In most states, prenups are invalid if one spouse conceals debts or assets. In Georgia, if a spouse accidentally omits such information, that omission could also be grounds for termination, depending on how severe the “accidental omission” was.

Unconscionable Terms

An 80-20 property division is uneven, but not unconscionable. People might agree to such terms in certain circumstances. “I get all the assets and you get all the debts” is unconscionable. No one should have to agree to terms like that.

Changed Circumstances

This ground for termination is unique to Georgia as well. If Jack bought 100 shares of Amazon stock immediately after the couple’s marriage in 1995, those shares were pretty much worthless. If Jack and Jill got divorced in 2015, those shares were infinitely more valuable.

Prenups are more than divorce insurance. For a free consultation with an experienced Marietta family law attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.