Prenuptial and Post-Nuptial Agreements

While the least possibly romantic idea, a marriage is looked at like a contract, a “Marriage Contract”. The history of marriage began as sort of a negotiation between families seeking the best match for their son or daughter. Fairly recently the concept of writing a detailed contract about what happens in the event of a divorce became in vogue. People are living longer healthier lives and are divorcing more often, so the typical high school sweethearts getting married scenario is less common than a remarriage or a marriage between people who are older and have significant assets. Georgia has accelerated the need for a pre-nuptial agreement as the hard-line separate property division (ie: your property you own before marriage remains your property in a divorce) has been weakened by Georgia caselaw. 

For example, I owned a home ten years before my marriage and had $100,000.00 equity before my marriage. My wife and I refinance the home to get a lower interest rate. Immediately after the refi my wife files for a divorce and claims that I gifted her my premarital share of the house because her name is now on the house, seeking not only the increase in value during the marriage but also what I had before the marriage.

A pre-nuptial agreement can provide a detailed contract setting forth what happens in event of a divorce. It can be very specific, ie: the first $100,000.00 in the residence goes to me in case of a divorce. You can be very general, ie: property is divided based on whose name is on the asset, separate assets remain separate assets. You can even set out alimony payments, for example I we are divorced I will pay you $1,000.00 a month for five years. These are generally enforceable under Georgia law if there is a complete disclosure of income, assets and debts prior to the execution of the document. Usually, a prenuptial agreement should have a listing of assets at the time of the signing of the agreement. I recommend each have their own lawyer review it prior to execution.

Springing a prenuptial agreement during the vow ceremony is not a good idea. A court could look at that as a contract under duress and set it aside. Long story short, if it is a fair contract fairly negotiated it should be valid.

You can redo the agreement during the marriage. For example, if we decide that one of use will stay at home to raise the kids to put into an agreement a specific amount alimony in the event of a divorce. The stay at home parent is harming their career; the spouse should share in this loss in the event of a divorce. This is called a “Post-Nuptial” Agreement.