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A TRUSTED PRENUP THAT’S AFFORDABLE
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So, you’re getting hitched in the peach state, and you’re considering a prenup… well, look no further! Here’s some information you need to know about Georgia’s prenups and the terminology used.
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Everything to know about Georgia prenups
The Georgia courts refer to a prenuptial agreement as an “antenuptial agreement.” An antenuptial agreement is a legal contract drafted between two parties prior to getting married, and in Georgia it is effective upon marriage, like most states. Georgia’s Antenuptial Agreement statute and case law govern the laws in Georgia pertaining to prenups and outline the rules and requirements for a valid agreement. The terms of a Georgia prenup agreement (a.k.a.antenuptial agreement) may outline alimony, property division, attorney’s fees, retirement accounts, and more. On the other hand, a prenup in Georgia cannot limit or contract around child support, child custody, or non-financial stipulations (think: weight gain and in-law’s visitation schedules). You also cannot give ultimatums for divorce. For example, you cannot include a provision stating, “if Husband doesn’t do XYZ, I can file for divorce.”
What can you include in your Georgia prenuptial agreement?
- Non-Marital Property – A Florida prenuptial agreement can specify what property should remain separate property of each party and not commingled or shared as a marital asset.
- Marital Property – A Florida premarital agreement can specify what property should be considered or become marital property. Marital property can include assets that were otherwise acquired prior to marriage (if you specify this should be the case- don’t forget about appreciation of otherwise non-marital property), as well as assets that may be acquired during the marriage.
- Alimony – This is AKA spousal support, or in some states, spousal maintenance, and is support of one spouse, by the other spouse. How alimony is calculated depends on state law. Your Florida prenuptial agreement can specify whether you and your future spouse will choose to follow the alimony laws of Florida, or whether you will choose to waive alimony altogether. These are points that can be negotiated in a premarital agreement.
- Support of Children – Child support or custody of children of the marriage may not be addressed in a prenuptial agreement.
For a Georgia prenup to be considered valid, you should consider the following:
- The contract must be in writing
- The terms must be lawful
- Signatures from both parties (HelloPrenup recommends initialing each page)
- The prenup is attested by at least two witnesses
- One of the witnesses is a notary
- It must be notarized
- Signed voluntarily (without being under duress, intimidation, deceit, etc.)
- The contract must be signed at a reasonable amount of time before the wedding
- Full and accurate disclosure of all financial assets and income *Do not skimp on this*
- It is strongly recommended that both parties be represented by their own attorneys
- It is strongly recommended to include both parties’ attorney’s certification document in the prenup
To ensure that your prenup complies with Georgia law, make sure not to include…
- Provisions that violate the law or public policy
- Child custody or child support interference
- Unconscionable provisions
- Remember that prenups must be entered voluntarily without fraud, duress, or misrepresentation. For example, you can bring the prenup to your husband 1 hour before the wedding is set to begin. This would most likely be found to be duress and, therefore not an enforceable prenup.
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Learn from this Georgia couple’s prenup mistake
A Georgia couple was married for 25 years, then got divorced in 2000. Then, 2 years later, they decided to give it another shot, so they re-married…and got divorced for the second time 8 years later. Well, before they re-married for the second time, they decided to write up their own prenup without legal advice or attorney supervision. Big mistake, HUGE. The courts ultimately determined that what they created was not actually a prenup at all. It was so poorly written from a legal perspective that it no longer qualified as a valid prenup. On top of that, even if it was valid, they did not have 2 witnesses, so it would have been invalid anyway.
One provision from the prenup was incredibly ineffective. Remember, the couple wrote this prenup by themselves, without legal supervision. The following clause attempted to give the wife alimony in the event of a divorce but failed miserably. The provision went as follows:
“In the event the marriage does fail, it is agreed that the settlement to [Wife] will compensate her for the hardship of mentally, emotionally, and physically creating a standstill in her life by further losing ground in her process of healing and of creating an independent life instead of putting her children and family reconciliation first. Compensation will resume in the afore-agreed amount of $2,500 monthly plus a cost of living adjustment to be paid for a period of 15 years.” Fox v. Fox, 731 S.E.2d 676 (2012).
The judges determined that this provision does not qualify as providing alimony because it never mentions the term alimony. Instead, speaks of compensating the wife for hardship (which is not alimony under the law’s eyes). Regardless, even if this was a valid alimony provision, they did not have 2 witnesses, thus making it a void contract under Georgia law.
One provision from the prenup was incredibly ineffective. Remember, the couple wrote this prenup by themselves, without legal supervision. The following clause attempted to give the wife alimony in the event of a divorce but failed miserably. The provision went as follows:
“In the event the marriage does fail, it is agreed that the settlement to [Wife] will compensate her for the hardship of mentally, emotionally, and physically creating a standstill in her life by further losing ground in her process of healing and of creating an independent life instead of putting her children and family reconciliation first. Compensation will resume in the afore-agreed amount of $2,500 monthly plus a cost of living adjustment to be paid for a period of 15 years.” Fox v. Fox, 731 S.E.2d 676 (2012).
The judges determined that this provision does not qualify as providing alimony because it never mentions the term alimony. Instead, speaks of compensating the wife for hardship (which is not alimony under the law’s eyes). Regardless, even if this was a valid alimony provision, they did not have 2 witnesses, thus making it a void contract under Georgia law.
Georgia Antenuptial Agreement Statute and Case Law
What is considered an unconscionable prenup by Georgia courts?
A landmark case from 2004, known as Adams v. Adams, still holds a strong precedent in Georgia today about what is considered an unconscionable prenup. The case went as follows. Husband and wife were married in 1994. Husband had $4.5 million in assets, and wife had $30,000 in assets. Just two days before their wedding, they executed a prenup.
The prenup granted wife $10,000 for every year of their marriage, until reaching the cap of $100,000. The wife additionally agreed to the following:
A landmark case from 2004, known as Adams v. Adams, still holds a strong precedent in Georgia today about what is considered an unconscionable prenup. The case went as follows. Husband and wife were married in 1994. Husband had $4.5 million in assets, and wife had $30,000 in assets. Just two days before their wedding, they executed a prenup.
The prenup granted wife $10,000 for every year of their marriage, until reaching the cap of $100,000. The wife additionally agreed to the following:
- To give up her rights to any of husband’s property acquired before the marriage
- To not make a lifestyle claim in the event of a divorce
- To forfeit her rights if she cheated on him
In 2003, after nine years of marriage, wife filed for divorce under adultery, cruel treatment, and irretrievably broken marriage. She sought alimony and equitable division of property and husband counter-filed seeking to enforce the prenup. The wife argued back that the prenup was unconscionable. The court disagreed with the wife and declared the prenup valid. It was not found to be unconscionable! Therefore, the court ordered husband to pay her $90,000 to represent the prenup’s requirement of $10,000/year for every year of marriage (nine years married).
- Wife had full and fair disclosure of husband’s assets
- Wife consulted with her own attorney to review the prenup
- Intent behind the prenup: both husband and wife had been married previously making it reasonable to anticipate divorce and seek to protect their assets through a prenup
Even though the prenup was executed two days before the wedding, it did not matter since she had full disclosure, she had her own attorney, and the intent behind the prenup was valid. Moral of the story: fully disclose your assets and get your own attorney if you want your prenup to stand! Adams v. Adams, 603 S.E.2d 273 (2004).
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Divorce statute
A divorce occurs when two people, who have been legally married, begin the court process to end the marriage. Georgia is considered one of the few “fault” divorce states. This means that you can file for divorce based on the grounds that one spouse “did something wrong.” However, if none of the grounds apply, you can simply claim that the marriage is no longer working out; in legal terms, this is claiming that the marriage is “irretrievably broken.
If you want to file for divorce based on one of the above-listed grounds, you must prove it with evidence. The benefit of filing for a fault divorce as opposed to a no-fault divorce is that with fault divorces, the court may award alimony or division of property more favorably to the party who was the “victim.” For example, this Georgia statute says that if one spouse commits adultery or abandons the other (and it’s proven with evidence), then that at-fault spouse may not be entitled to alimony.
If you want to file for divorce based on one of the above-listed grounds, you must prove it with evidence. The benefit of filing for a fault divorce as opposed to a no-fault divorce is that with fault divorces, the court may award alimony or division of property more favorably to the party who was the “victim.” For example, this Georgia statute says that if one spouse commits adultery or abandons the other (and it’s proven with evidence), then that at-fault spouse may not be entitled to alimony.
- Intermarriage
- Mental incapacity
- Impotency
- Force, menace, duress, or fraud
- Pregnancy of the wife by another man that is not the husband
- Adultery
- Desertion of one spouse for 1+ year
- Moral turpitude under which he or she is sentenced to prison for 2+ years
- Habitual intoxication
- Cruel treatment
- Incurable mental illness
- Habitual drug addiction of a controlled substance
- The marriage is irretrievably broken
If you want to file for divorce based on one of the above-listed grounds, you must prove it with evidence. The benefit of filing for a fault divorce as opposed to a no-fault divorce is that with fault divorces, the court may award alimony or division of property more favorably to the party who was the “victim.” For example, this Georgia statute says that if one spouse commits adultery or abandons the other (and it’s proven with evidence), then that at-fault spouse may not be entitled to alimony.
The 3 ways that a couple can legally end a marriage are divorce, legal separation, and annulment. Georgia does not recognize legal separation. However, Georgia law does allow for a way to remain married but live apart known as “Separate Maintenance.” It is similar to a divorce proceeding in that it resolves all the issues that a divorce would. It is different from a divorce because it does not end the marriage completely. Depending on your specific circumstances, your lawyer can recommend the best option for you. Still, the most common way to end a marriage in Georgia is through divorce.
Only one party needs to begin the process of ending a marriage (but don’t get us wrong, it takes two to make it work!) If one party wants to divorce the other party, it is within their sole right to do so, and the other non-participating party does not have to agree in order to begin the process. If a non-participating spouse does not partake in the proceedings, a default judgment will be entered and force the divorce to proceed.
>>For the entire fine print, review Title 19, Chapter 6 of the Georgia Code
Separate property
Official term for property not considered part of the marital estate.
In Georgia, courts have complete power to decide how to divide property and distribute it based on what the judge believes to be fair based on the facts of the case. This way of property division is known as “equitable distribution,” and most states adhere to this method. The idea is that any property acquired during the marriage is known as “marital property” and anything acquired before marriage, given as a gift from a third party, or inherited is considered separate property. Only marital property is divided up.
In Georgia, courts have complete power to decide how to divide property and distribute it based on what the judge believes to be fair based on the facts of the case. This way of property division is known as “equitable distribution,” and most states adhere to this method. The idea is that any property acquired during the marriage is known as “marital property” and anything acquired before marriage, given as a gift from a third party, or inherited is considered separate property. Only marital property is divided up.
What is considered separate property and marital property, and why does it matter? It matters because anything deemed to be marital property is subject to equitable division. In other words, marital property will be split fairly between the two parties. What is “fair” is up to the judge that day.
Here’s what the court said about separate property from a case in 2017. A husband argued that his wife’s Vanguard account (a type of retirement account) should not be considered separate property and should be split up under equitable division. The wife argued that this retirement account was owned prior to the marriage and, therefore, separate property not subject to division. Husband counter-argued that the wife placed marital money into the retirement account. The court ended up agreeing with the husband. The court said that because the wife put marital money into the retirement account, it should be split up equitably, even though the wife opened this account before the marriage. Flesch v. Flesch, 804 S.E.2d 67 (2017).
Spousal support
The purpose of alimony in Georgia is to maintain the status quo when the marriage ends. Georgia offers two primary types of alimony: temporary alimony and permanent alimony. Temporary alimony in Georgia is support from one spouse to another only during the divorce proceeding. This type of alimony provides financial support during the financially draining divorce process. Keep in mind that a cheating spouse or spouse who has abandoned the other will not receive alimony. The other type of alimony is permanent alimony, and it is money paid after the divorce proceeding concludes.
How much can be awarded in Georgia alimony? Well, there are alimony schedules or caps in other states, but in Georgia there is no such thing—the sky’s the limit (or a bottomless pit, depending on which way you’re looking at it). The court will look at a list of factors that you can find here and will make a judgment based on the parties’ behavior. The factors considered to determine amount of permanent alimony are as follows:
How much can be awarded in Georgia alimony? Well, there are alimony schedules or caps in other states, but in Georgia there is no such thing—the sky’s the limit (or a bottomless pit, depending on which way you’re looking at it). The court will look at a list of factors that you can find here and will make a judgment based on the parties’ behavior. The factors considered to determine amount of permanent alimony are as follows:
- Standard of living during the marriage (i.e., the status quo)
- Duration of the marriage
- Age of spouses
- Physical and emotional condition of the spouses
- Financial resources of each spouse
- Time necessary for either spouse to acquire education sufficient to become employed
- Contribution of each party to the marriage (think: homemaking, childcare, education, career building of the other spouse)
- Earning capacity of each spouse
- Any other relevant facts to make sure the alimony is fair
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