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Prenuptial Agreements in Georgia

Before we get into a quick overview of the enforceability of Prenuptial agreements in Georgia, I should take a moment to congratulate Ms. Tera Reese-Beisbier on her appointment to the Georgia Bar Association’s Executive Committee of the Family Law Section as an at-large member. As an at-large member, Tera will assist the Committee in planning events, advising other attorneys about new developments in family law, and many other endeavors. Congratulations again, Tera!

Prenuptial Agreements in Georgia

The Supreme Court of Georgia ruled in 1982 that the enforcement of Prenuptial agreements will rest on three considerations. The first consideration is if the agreement obtained through fraud, duress or mistake, or though misrepresentation or nondisclosure of material facts? Secondly, we look to see if the agreement is unconscionable. Lastly, have the facts and circumstances changes since the agreement was executed, so as to make its enforcement unfair and unreasonable? Scherer v. Scherer, 249 Ga 635 (1982.

Considering the first test, it really comes down to disclosure. Parties must disclose assets to each other in order to have a valid prenuptial agreement.  Also of note here, is that merely telling a party that you will not marry if they do not sign the agreement does not count as undue duress. Mallen v.Mallen, 280 Ga. 43 (2005).

Determining if a prenuptial agreement is unconscionable, requires one to know the meaning of unconscionable  as Georgia law defines the term. It does not mean grossly unfair.  In Georgia, an unconscionable contract is “one abhorrent to good morals and conscience…where one of the parties takes a fraudulent advantage of another[,] an agreement that no sane person not acting under a delusion would make and that no honest person would take advantage of. William J. Cooney, P.C. v. Rowland, 240 Ga.App. 703(1999). That is a pretty tough standard to meet, very few agreements would meet such a standard.

When considering the last test, it is important to remember that any change that could have been reasonably foreseeable does not invalidate the agreement.  One party growing wealth during the marriage is a foreseeable result of growing a business and would not invalidate the agreement. Curry v. Curry, 260 Ga. 302 (1990).  This is also a tough bar to get past, as Courts in Georgia are reluctant to find a change in circumstances when considering a prenuptial agreement.

In order to properly protect yourself and your assets before entering into a marriage, it is essential to prepare a proper prenuptial agreement. The best way to ensure that you cover all issues that may invalidate such an agreement down the road, is best  to consult a competent family law attorney.

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