Prenuptial agreements, also known as prenups or antenuptial agreements, are becoming more and more common. What was once thought of as a tool for the super wealthy is now an option that many people consider, regardless of their financial situation. In fact, anyone with assets or debts may want to consider a prenuptial agreement. A prenup can help protect your assets and shield you from taking on your spouse’s debts upon divorce. A prenuptial agreement can also also help parties identify what assets and debts each spouse is bringing to the marriage. Before you enter into a prenuptial agreement, it is important that you understand your legal rights.

What is a Prenuptial Agreement?

A prenuptial agreement is a contract entered into by two people before marriage. Many people wish to enter into this agreement in order to decide how they will divide property, debt, and other financial assets that may come into question upon divorce. For example, a prenuptial agreement may set out the terms by which alimony will be awarded. Other couples may use the agreement to detail how they would like specific situations to be dealt with during the marriage.

A prenup agreement can not, however, determine child custody or child support arrangements upon a divorce. These decisions must be determined by the parties during the divorce proceedings or by a judge.  

Is My Prenup Valid?

Under the laws of Georgia, in order for a prenuptial agreement to be valid, it must be in writing, made in contemplation of marriage, and must be signed in the presence of at least two witnesses.  Once an agreement is signed, it must then be filed in the county superior court clerk’s office where either spouse lives within three months of the signing date.

Next, since a prenuptial agreement is a contract, both parties must be competent to enter into a contract. This means:

  • Both parties are old enough to get married (at least 16 or 17 if there is parental permission);
  • The parties are both mentally competent;
  • Neither party is married to another person at the time of marriage; and
  • The parties are not related to one another.

Will a Court Decide Not to Enforce My Prenuptial Agreement?

If the above validity requirements for a prenuptial agreement are not met, then the court is not obligated to enforce the agreement. However, there are other instances in which a court may decide against enforcing a prenuptial agreement. An agreement will be thrown out if:

  • A spouse obtained the agreement through fraud, duress, or mistake;
  • A spouse misrepresented or refused to disclose material facts;
  • The agreement is so unfair the court cannot enforce it; or
  • The couple’s circumstances have changed since the agreement, so much so that it is no longer fair.

The attorneys at Vayman & Teitelbaum are experienced in the area of prenuptial agreements. We understand the complexities involved and the needs of all parties. If you or your fiance are considering a prenuptial agreement, please contact our firm. We will work to ensure that a mutual agreement is reached to benefit both parties.