According to US Census Bureau data, divorce rates in the South are higher than in the rest of the nation, with Georgia ranking eighth out of the 50 states. Divorce rates are even higher for second or third marriages. With divorce rates being so high, it is no wonder that prenuptial and postnuptial agreements are becoming more popular. Even though it may seem improper to plan for the end of a marriage before it even begins, a prenuptial agreement may be a good idea for a variety of reasons. If you are unsure whether a prenuptial agreement is right for you, talk to a local family law attorney to see exactly what it’s all about.
Equitable Property Distribution In Georgia
The state of Georgia follows the rule of equitable distribution of marital property. Unlike community property states, in which each spouse is assumed to have an equal share in all marital property, states which follow the rule of equitable distribution may allow more or less marital property to be distributed to each spouse, depending on the circumstances of each case.
Factors which may be considered by a Georgia court in dividing marital property may be:
- The financial resources and needs of each party.
- The earning capacity of each party.
- The conduct of each party during the marriage, and whether the conduct of a spouse contributed to the breakup of the marriage.
- Conduct of either party that may have led to the loss or devaluation of marital property, such as gambling, bad investments, or the squandering of resources on drugs or alcohol.
Separate Property And Marital Property
Most property acquired by the parties during the marriage is assumed to be marital property unless it was acquired through inheritance or gift from a third party. The spouses’ gifts to each other during the marriage are considered marital property in Georgia. Retirement benefits, 401K money, and pensions may be considered marital property. Any property owned by either party prior to the marriage is considered separate property, and not subject to equitable distribution.
Why Sign A Prenuptial Agreement?
Many people assume that prenuptial agreements are only for couples with a lot of money, or for situations in which one spouse has significantly more resources than the other. While a prenuptial agreement may be appropriate in those circumstances, there are many other reasons why a prenuptial agreement may be right for you.
- Distinguishing between separate and marital property. If the property that each party brought to the marriage is clearly listed, there will be no chance for a dispute later on.
- When one spouse comes into the marriage with a lot of property.
- When one spouse leaves the workforce to concentrate on homemaking, raising children, or supporting the other spouse’s career.
- When one spouse has an ownership interest in a family business.
- One or both spouses have children from prior relationships.
What Is A Postnuptial Agreement?
A postnuptial agreement is the same as a prenuptial agreement but is prepared after the parties are already married. The parties may decide to sign a postnuptial agreement after the birth of a child when one party comes into a substantial inheritance when the parties’ financial situation changes, or for any other reason.
What Is Covered By A Prenuptial Agreement?
A pre-or postnuptial agreement will usually list the separate property that each person brings to the marriage. The agreement may then cover whether either party will receive spousal, and, if so, the amount of support. Division of marital property, including pensions and retirement accounts, in the event of divorce.
The agreement may also include what will happen to one or both spouse’s property in the event of their death. While not a substitute for a will, a prenuptial agreement may include agreements to waive a spouse’s share of property if there is no will, and the deceased spouse has children.
One thing that cannot be included in a prenuptial or postnuptial agreement is child custody, support, or visitation.
Can A Prenuptial Agreement Be Amended?
The agreement will usually state that it can be amended with the written consent of both parties.
When Can A Prenuptial Agreement Be Invalidated?
A court can declare a prenuptial or postnuptial agreement invalid if one party was not legally capable of entering into a contract due to age or disability. The agreement may also be nullified if it is determined that one party was coerced into signing, or if the party’s signature was obtained through fraud or misrepresentation.
A Carrollton, Georgia Family Law Attorney Can Help
It is important to talk to a Carrollton, Georgia family law attorney before signing a prenuptial or postnuptial agreement, so you can be certain of the consequences of signing the agreement, and so you will know your rights. A prenuptial or postnuptial agreement should always be prepared by an attorney. If you have already signed an agreement that you believe is unfair, an experienced family law attorney can advise you about your chances of having the agreement overturned.