A Word from Scott Shaw: Do I Really Need Prenuptial Agreement and Is it Enforceable?

Marriage is a serious legal matter. It changes the legal standing of two parties to largely become one economic unit. What he makes is also hers, and what she makes is also his. But it can also put spouses at risk, should the marriage end, of paying alimony to the other spouse, attorney’s fees, and maybe even pre-marital or non-marital property that is rightly yours alone. Given this, the answer to, “Do I really need a prenuptial agreement in Georgia?” is YES.

Among other things, a prenuptial agreement can: 

• Definitively remove the option for alimony or lump sum alimony for either spouse
• Remove any award of attorney’s fees under O.C.G.A. 19-6-2, which can substantially reduce the scope and expense of trial
• Set aside what is separate, premarital, or non-marital property, along with the value, without having to litigate 
• Materially reduce the cost and length of any litigation in divorce if the marriage were to fall apart  

In short, if nothing else, a prenuptial agreement materially reduces the pain, risk, and cost of divorce 

Is it Enforceable? 

Regarding the second question, “will it be enforceable if I have one?” the answer is also YES in most circumstances. What’s required is to determine: 

• If it’s fair at the time of marriage 
• If it’s fair at the time of divorce
• If the disclosure of assets was made at the time of marriage to provide each party an understanding of what they may be giving up

Prenuptial Agreements in Georgia Courts

Georgia courts are increasingly willing to uphold prenuptial agreements. A recent Georgia decision, Coxwell v. Coxwell, 765 S.E.2d 320 (Ga. 2014), went out of their way to enforce a prenuptial agreement that was lost as long as its terms could be proven in another method. 

The most used argument against a prenuptial agreement is that the agreement is unconscionable. For example, a husband entered into a prenuptial agreement with his 16-year-old uneducated wife, who was pregnant at 15. She did not have use of her own lawyer. Since the marriage was largely made to keep the husband out of jail, the court refused to enforce this prenuptial agreement because it was unconscionable. 

However, when properly done, Georgia courts favor enforcing prenuptial agreements.

Protect Yourself with a Prenuptial Agreement 

To sum up: yes, you should have a prenuptial agreement. If nothing else, it limits any future awards of alimony and attorney’s fees, and thus materially the scope of litigation. And yes, the State of Georgia has a policy of enforcing properly drafted prenuptial agreements that are fair at the time of marriage, fair at the time of divorce, that are not unconscionable, and make full and fair disclosure of assets at the time of marriage.

We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone.