There is a common misperception that prenuptial agreements (also called “antenuptial agreements” or “premarital agreements”) are only for the fabulously rich and famous – the elite among us. In reality, there are many scenarios where prenuptial agreements can help protect the needs and interests of “regular” people, with more modest assets and income.
At Kitchens New Cleghorn, LLC, we help clients by drafting, reviewing and helping them execute valid prenuptial agreements to provide a sense of protection and peace of mind. If you are already married and are looking for ways to protect your interests, it’s too late to sign a prenuptial agreement. However, our family law attorneys can help you identify whether a postnuptial agreement is an advisable option.
What Do Valid Atlanta Prenuptial Agreements Include?
As long as it is drafted and executed in accordance with Georgia laws, a prenuptial agreement will generally hold up in court if it is later challenged.
In order to be considered valid, a prenuptial agreement must meet several requirements, including the following:
- Written – Because it is a legal contract, a prenuptial agreement must be written and signed by both of the parties. Other elements of contract law apply, including the fact that the parties must both be able to legally sign a contract.
- Full and accurate disclosure – Financial standing (assets, income, and liabilities) is the foundation of, and reason behind, most prenuptial agreements. Both parties must make a full and fair disclosure to the other party.
- Obtained without duress or fraud – A prenuptial agreement obtained through fraud, mistake, duress, misrepresentation or nondisclosure of material facts will be deemed invalid. The burden to show that an agreement was signed under duress, or that an agreement was unconscionable when signed, is a high threshold in Georgia. A valid showing of duress would need to include threats or coercion such that one of the parties didn’t sign the agreement of his or her own free will and accord.
- Both parties understand the agreement – A key element of creating a valid prenuptial agreement in Georgia is that both parties understood the agreement’s provisions, and the contents of the financial information disclosed. This means that both parties need to be given sufficient time to read, understand and discuss the provisions in a prenuptial agreement with their attorney before signing it. So, a prenuptial agreement a bride-to-be presents to the groom-to-be on the eve of their wedding day would probably not hold up if challenged.
Who Should Consider Signing a Prenuptial Agreement in Atlanta?
Not everyone who is getting married needs a prenuptial agreement. However, there are situations where they make sense. Having a valid prenuptial agreement in place can make sure that property brought into the marriage doesn’t lose its “separate property” status after you say “I do.”
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While any competent adult can enter into a prenuptial agreement with their future spouse in Georgia, there are certain situations where a prenuptial agreement may be more appropriate than others. Some of those situations include when one or both parties has considerable assets that they are bringing into the marriage, or when one or both parties has children from a previous relationship, and they want to protect assets for those children.
Things to Consider with Atlanta Prenuptial Agreements
Ideally, both parties to a prenuptial agreement should be represented by their own attorneys. Here’s why: there is an inherent conflict of interest with a prenuptial agreement; your interests are adverse to those of your future spouse. Having separate attorneys who are each looking out for their individual clients’ best interest is one way to help make sure each party has a voice in the agreement. Each party to a prenuptial agreement should be given the right and the opportunity to consult with an attorney of his or her choosing before signing the agreement.
Because the law governing prenuptial agreements in Georgia can be nuanced, it is important to choose an attorney who understands and regularly drafts prenuptial agreements for his or her clients. This can help avoid the need for unnecessary court battles in the event the marriage is later dissolved.
Frequently Asked Questions about Georgia Prenuptial Agreements
Q: Do prenuptial agreements cover things like alimony, child custody and child support?
A: A Georgia prenuptial agreement can cover alimony, setting and limiting it to a certain amount, or eliminating it altogether. When it comes to child custody and child support, prenuptial agreements generally don’t address those topics. Because child custody and child support are situation-based determinations about what’s best for the child and the parents’ circumstances at that point, they are decisions that are made later, if the marriage is terminated.
Q: Do prenuptial agreements need to be “fair”?
A: What’s “fair” is subjective. Prenuptial agreements are often more one-sided, with one spouse bringing a greater amount of financial assets to the marriage. Prenuptial agreements in Georgia do not necessarily need to be fair, but they cannot be unconscionable.
Changing an Atlanta Prenuptial Agreement
Q: Can a prenuptial agreement later be changed?
A: Yes. If both spouses agree and the changes otherwise meet the requirements for a valid prenuptial agreement, you can prepare an amendment to the original prenuptial agreement.
Q: Can a prenuptial agreement be terminated after it is in force?
A: Yes, you can include provisions in your prenuptial agreement that state how the agreement can be terminated after it is in force. Typically, this involves both parties agreeing in a signed, legal document that they intend to cancel the agreement and all of its provisions. Your prenuptial agreement can also be prepared with language that automatically terminates the agreement on a set date in the future, if it has not been terminated by you and your spouse before that date.
Q: Do prenuptial agreements in Georgia cover distribution of assets after death?
A: Generally speaking, no, prenuptial agreements will not define how your assets will pass when you die. However, your prenuptial agreement should include provisions saying that you and your spouse are free to create your own separate wills or trusts to govern distribution of assets after your deaths, and that you may choose to name your spouse as the designated beneficiary of your assets.
Choose Kitchens New Cleghorn, LLC for Your Atlanta Prenuptial Agreement
Sometimes clients are uncomfortable with the idea of prenuptial agreements. However, they can serve a valuable purpose, helping to protect your assets and income in the event your marriage doesn’t go as planned. Preparing for contingencies doesn’t make you cynical; it makes you smart.
To learn more about prenuptial agreements, schedule an initial consultation today with an experienced prenuptial agreements attorney at Kitchens New Cleghorn, LLC today. Call us in Atlanta at 404.996.0806, or contact us online to get started.