More than half of all marriage now end in divorce, with the rates for second and third marriages even higher than that. The state of Georgia ranks eighth among the 50 states for divorce rates. With those disturbing statistics in mind, it may be wise to at least consider a prenuptial agreement. Many couples who have signed prenuptial agreements have reported that, rather than casting a shadow on their upcoming wedding, the process of discussing their finances while they were in a good frame of mind was actually a positive experience. LaGrange residents who are planning to get married can consult with a LaGrange, Ga. family law attorney who can explain in detail how a prenuptial agreement works, so they can decide if it is right for them.
Equitable Property Distribution In Georgia
In determining how to divide property in the event of a divorce, each state follows one of two rules. In community property states, all marital property is assumed to be owned equally by the spouses. Marital assets are divided equally when there is a divorce, regardless of the relative contributions or financial positions of the parties.
Georgia is one of the majorities of states that follows an equitable distribution rule for marital property. In an equitable distribution state, marital property may be distributed unequally, taking into account the financial needs and assets of each party, the contributions each party made to the marriage, both financially and otherwise, the fault of either party in breaking up the marriage, and any other factors that a judge might find relevant.
Separate Property And Marital Property
Anything owned by a spouse prior to their marriage is considered their separate property. During the marriage, any property acquired by either party through inheritance is also considered separate property. In the event of a divorce, a court will not have jurisdiction over the separate property, although the amount of separate property owned by each party may be a factor to consider when determining the distribution of marital property.
Marital property includes anything acquired by either party during the marriage, whether or not is it held in both names. Pensions and retirement accounts may also be considered marital property. Gifts bought by the spouses for each other during the marriage are considered marital property.
Why Sign A Prenuptial Agreement?
It is often assumed that prenuptial agreements exist only to protect a wealthy spouse who marries someone whose financial resources are much smaller. In fact, there are many reasons why a prenuptial agreement might be appropriate.
- Unequal financial resources– This is a common reason for a prenuptial agreement. A spouse with a lot of property may want to set limits to their liability for support if the marriage ends.
- Children from prior relationships – If either or both parties have children from prior relationships, they may want to protect their children’s inheritance rights by specifying how the children will be provided for if a parent dies. A prenuptial agreement can keep a surviving spouse from disinheriting their step-children.
- Separate property – If one of both parties come into the marriage with their own property, they may want to clearly establish what is separate, to avoid disagreements later. They may also want to establish what will happen if separate property is sold and the proceeds used to purchase marital property.
What Is A Postnuptial Agreement?
As the name implies, a prenuptial agreement is signed before the parties marry, and a postnuptial agreement may be signed at any time during the marriage. Unlike a separation agreement, which is prepared after separation or in contemplation of a separation, a postnuptial agreement may be signed when there is a significant change in the parties’ lives, such as the birth of a child, a large inheritance, or other significant changes in finances.
What Is Covered By A Prenuptial Agreement?
A prenuptial or postnuptial agreement will generally cover:
- A list of which property is separate property and which is marital property.
- A provision about what happens when separate property is sold during the marriage.
- A specific amount of spousal support, or a formula for determining the amount of spousal support if the parties divorce.
- Provisions for the inheritance rights of step-children.
Can A Prenuptial Agreement Cover Child Support?
No. Child custody, support, and visitation may not be specified in a prenuptial or postnuptial agreement. Those items may be agreed upon by the parties in a separation agreement, however.
Can A Prenuptial Agreement Be Amended?
A prenuptial or postnuptial agreement can be amended if both parties agree to do so in writing.
When Can A Prenuptial Agreement Be Invalidated?
A prenuptial agreement can be declared unenforceable if it was obtained through fraud or duress, or if it is found to be fundamentally unfair to one party. Just because an agreement appears to be one-sided does not make it fundamentally unfair, however. An agreement may also be invalidated if one party was either underage or incapable of understanding what they were signing.
Talk to A LaGrange, Georgia Family Law Attorney
It is important to talk to a LaGrange, 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. If you have questions about an agreement you have already signed, a LaGrange, Ga. family law attorney can let you know your options. Call Moffitt Law, LLC today.