Drafting an Enforceable Prenuptial Agreement

Couples considering marriage should also think about what could happen if the relationship does not work out, as the complexity of divorce can quickly cost both spouses a lot of time, money, and strife. Prenuptial agreements, also referred to as antenuptial and marriage articles under Georgia law, offer a straightforward and effective way to resolve many issues related to divorce, and couples are now starting to realize the benefits of hashing things out while heads and hearts are cool and clear.

Significant amounts of time and effort go into crafting prenuptial contracts, so couples have an interest in ensuring they are valid and enforceable in the event they are needed. All contracts have specific legal rules and requirements they must satisfy in order for a court to recognize and enforce them, and prenuptial agreements, because of the matters involved, are regulated more heavily.

Thus, the matters prenuptial agreements may address, and the parameters for assessing enforceability, are narrower than those applied to contracts generally. Consequently, understanding what courts will expect to see, and the steps couples can take to facilitate the creation of a sound and effective prenuptial agreement, is information that should be generally understood.

What Can Prenuptials Address?

Parties to a contract are generally free to agree to anything they want, provided it does not involve illegal acts, but prenuptial agreements are treated somewhat differently, and are generally restricted to the following matters:

• The duties and rights of each spouse during the marriage;
• The treatment of property and money each spouse brings into the marriage, i.e., separately or included in the marital pot; and
• The division of assets and liabilities acquired during the marriage.

Note that provisions that violate public policy (promote divorce), or address child custody or support could result in the agreement being partially or wholly invalidated, and should be avoided.

Evaluating Enforceability

Starting with the technical requirements, like many contracts, prenuptial agreements must be in writing and signed by both parties. They must also be attested to by two witnesses, but the law wants to support their enforceability, so courts are directed to interpret them liberally and not invalidate them for violations of form or technical requirements. Beyond these parameters, past judicial decisions have identified three situations that could invalidate a prenuptial agreement, if proven:

• Current enforcement would be unfair based upon unanticipated changes in circumstances since the agreement was executed;
• The agreement made under fraud, duress, misrepresentation, or nondisclosure of material facts; or
• The agreement is unconscionable (unjust).

How to Facilitate a Strong Agreement

Seeing a prenuptial agreement invalidated can greatly alter the outcome of divorce, and to guard against that result, consider instituting the following guidelines:

• Discuss a prenuptial agreement at least six months prior to the wedding to avoid courts questioning the voluntariness of the agreement because it was executed too close to the wedding;
• Ensure that each spouse has his/her own attorney;
• Create an itemized spreadsheet of assets debts coming into the marriage, and attach it to the agreement; and
• Keep liquid assets in a separate account to make it easier to identify and exclude in a divorce.

Contact a Family Law Attorney

Prenuptial agreements control the resolution of pivotal matters related to divorce, and should not be signed without the counsel of an experienced family law attorney. Our legal team at Moffitt Law, LLC understands how important and intimidating these agreements can be, and are available to assess whether a prenuptial agreement is right for your situation. Contact the LaGrange law firm for a free consultation.