Prenuptial Agreements In Divorce

Prenuptial agreements are a special type of contract. They address the rights and expectations of both spouses in the event of a divorce. Postnuptial agreements serve the same function; the only difference is that they are completed after marriage instead of before.

When these agreements surface, they can have a profound impact on divorce proceedings, especially when it comes to division of property and alimony (spousal support).

Enforcing Or Challenging Marital Agreements

Georgia law recognizes that prenuptial/postnuptial agreements are generally enforceable. However, they can be invalidated in limited situations. Common reasons for challenging a marital agreement include:

  • Not in writing: An oral agreement isn't enforceable. A valid marital agreement must be in writing, signed by both parties and properly witnessed.
  • Fraud or duress: If you were tricked or coerced into signing a marital agreement, you may have a strong case for challenging it.
  • Incomplete disclosure or misrepresentation: Before entering into a marital agreement, both parties have the right to full disclosure regarding each other's finances and property. Without this disclosure (or a provision waiving this right), the agreement may be invalidated. It may also be unenforceable if one party misrepresents the nature or extent of his or her finances.
  • So unfair that it's unconscionable: The fact that a marital agreement is unfair or one-sided generally isn't enough to warrant overturning it. However, extremely unreasonable agreements may not be enforced. Examples include agreements that leave one spouse dependent on public assistance to make ends meet or those where one spouse didn't have a reasonable opportunity to consult with an independent lawyer.

Some issues in divorce — such as child support and custody — are beyond the scope of marital agreements. Clauses that address these issues won't have any force.

Is Your Agreement Valid?

At Terri Herron Law, an Atlanta-based family law firm, we can help you determine whether your marital agreement is valid. We handle both enforcing and challenging prenuptial/postnuptial agreements in divorce. Call 404-692-6487 to schedule your consultation with our attorney.