Most people do not want to think about the possibility of divorce when they are planning to get married, but the reality is, over half of the marriages in the United States end in divorce, with the rate even higher in the South. It never hurts to think about and plan for all possible outcomes. Some couples find that talking about property, incomes, support, and other financial matters can be a positive experience.
Before deciding whether you need a prenuptial agreement, learn more about exactly what they are.
Community Property vs. Equitable Property in Georgia
In some states, all marital property is considered community property, with the assumption that each spouse is entitled to 50% of marital property in the event of a divorce. Georgia is not a community property state. Georgia follows the equitable distribution rule, meaning that marital property is not necessarily distributed to each spouse equally. Depending on the equities of each individual case, one party may receive a greater share of the marital property than the other.
A Columbus, Georgia judge will consider many factors when determining the best way to divide marital property in a divorce case, including:
- The contributions of each party, financial and non-financial, to the marriage.
- The assets and liabilities of each party.
- The earning capacity of each party.
- The age, education, and health of each party.
- Whether there are minor children, and which spouse has the primary responsibility for their care.
- Whether either party was guilty of fault in the divorce.
- Whether either party has already taken, sold, or squandered marital property.
What is Marital Property in Georgia?
There are two types of property that may be covered in a prenuptial agreement. Separate property is a property that either spouse owned before the marriage, or inherited before or during the marriage. Marital property is property acquired during the marriage and may include property titled in the name of just one of the parties. One party’s 401k or pension may also be considered marital property, depending on the length of the marriage and the amounts that were contributed before and during the marriage.
Purposes of a Prenuptial Agreement in Georgia
Prenuptial agreements may be very useful when one or both parties come into the marriage with a lot of separate property. The prenuptial agreement may list all items of separate property, to eliminate any confusion. The agreement may also address what happens if a piece of separate property is sold during the marriage and the proceeds used to buy more property. If one person owns a house prior to the marriage, the house is sold, and the proceeds used to purchase another piece of property, is that new property separate or marital property? A prenuptial agreement can make it clear exactly what the parties want to happen in such a situation.
A prenuptial agreement is also common when one or both parties have children from prior relationships. Spouses may agree to give up their rights to their marital share of inheritance if either dies without leaving a will. In some cases, a prenuptial agreement may even take precedence over a will. For example, both parties may have children from prior relationships. They both execute wills leaving their property to each other, with the children inheriting the property equally after both spouses die. A prenuptial agreement can prevent one party from changing a will after the other party dies, and disinheriting his/her children.
If one spouse quits working or postpones and education in order to support the other spouse’s career, a prenuptial agreement can make sure that the spouse is taken care of in the event of a divorce. The agreement can specify whether spousal support is to be paid, and for how long, if the parties divorce.
A prenuptial agreement may not include any provisions for child custody, support, or visitation.
Challenging A Prenuptial Agreement in Georgia
A prenuptial agreement may be declared invalid if:
- It is determined to be fundamentally unfair to one party.
- The agreement was signed under duress.
- A party materially misrepresented important facts to induce the other party to sign.
It is determined that one party was underage, or under a physical or mental disability that prevented him/her from understanding what they were signing.
What Is A Postnuptial Agreement in Georgia?
A postnuptial agreement is the same as a prenuptial agreement but is signed after the parties are already married. Postnuptial agreements may be useful when circumstances have changed, such as:
- One party leaves the workforce to concentrate on homemaking and child care.
- One party uses separate property to help further the other party’s education, or to invest in a business.
- There is a significant change in the financial resources of either or both parties.
Talk To A Columbus, Georgia Family Law Attorney
You should always consult a Columbus, Georgia family law attorney if you want to prepare a prenuptial or postnuptial agreement, or if your fiancé or spouse presents you with an agreement to sign. Never sign any agreement without being advised of the potential consequences, so call Moffitt Law, LLC today.