What’s a Prenup?
A prenuptial agreement, often referred to as a "prenup," is a legal contract that is created by a couple before they get married. This agreement typically outlines how assets, debts, and other financial matters will be divided in the event of a divorce or separation.
Prenups can also address other issues, such as spousal support (alimony) and how property will be passed on in the event of one spouse's death. Prenuptial agreements are often used to protect the financial interests of both parties and to provide clarity and certainty in the event of a divorce.
Why Should I Have A Prenuptial Agreement?
Sometimes marriages do not work. That's just a fact of life. No couple enters into a marriage with a plan to eventually divorce. But things happen and there are circumstances that can occur to lead to the dissolution of a relationship. One mechanism that can help make divorce more straightforward is to have a prenuptial or postnuptial agreement in place. Taking time to get an agreement drafted prior to any conflict in the marriage can save you aggravation and significant time and money. And prenups and postnups should be drafted rather quickly. A seasoned attorney can draft an agreement in a relatively short period of time.
It's the Smart Thing to Do
The feeling among the most sophisticated, smart people is that anyone who is contemplating marriage who has significant assets or income should have a prenuptial agreement to protect against economic disaster in the event the marriage ends in divorce. Really, why enter a marriage in fear of risk? A well-written prenuptial agreement, also known as an antenuptial agreement, will set the stage for marital bliss. Some brides and grooms could not imagine getting married without a prenup or postnup. They see the statistics and have many friends and relatives who have gone through a divorce.
At The Sherman Law Group, we frequently represent clients throughout the Atlanta Metro area and North Fulton County in the process of drafting both prenuptial and postnuptial agreements. Our experience as a Magistrate Judge, a Senior Assistant County Attorney and as an Assistant Attorney General makes us an ideal law firm to represent you in a prenuptial or postnuptial agreement.
Reasons for a Prenup: There are Many
There are many reasons why couples get a prenup. Here are some reasons we have seen in our practice:
- you own your own business
- one party has real estate assets
- you are expecting a future inheritance
- you earn more than your partner
- your net worth is more than that of your partner
- you have children from previous relationships
- you have elderly parents that rely on your financial support
- you or your partner has debt
- you want to leave your assets to others aside from your partner
- couples want to fairly divide their debt
- one party has student loan debt
- you have medical bills
- a party has large credit card debts
- one party has mortgages
- a party has home equity lines of credit
- there are outstanding 401K loans
Prenuptial and Postnuptial Agreements in Georgia: The Many Benefits
There are numerous benefits to having a prenuptial or postnuptial agreement drafted for your protection. In Georgia, an increasing number of couples are making sure that they have a prenuptial agreement established. This details how you want certain events to play out if divorce were to occur. At The Sherman Law Group, we will listen to your goals and draft an agreement according to your wishes.
Not Just for the Rich -- Most Prenups are for Middle-Class People
The perception used to be that prenuptial agreements were something only for the rich and famous. Or perhaps only for individuals who were marrying for the second time and had assets from their first marriage they wanted to protect for themselves or their children from that marriage.
Today, prenups make great sense for anyone who has something to lose. A prenup (also known as a “prenupt”) or postnup makes marriages much stronger. It is a smart and realistic way to make a marriage stronger and less vulnerable. When you set the stage in advance, you don't worry about the consequences of a divorce.
Prenuptial agreements are becoming very popular. A recent poll revealed that 49 percent of singles and 64 percent of divorced people said they thought a prenup was a good idea. Interestingly, 73 percent of divorced people said they regretted not having one.
Questions About A Prenup?
Certainly not every couple requires a prenuptial agreement. In situations where they are helpful the issues that should be addressed can vary widely. At your consultation you will have the opportunity to discuss a variety of questions, including:
- How will a premarital agreement impact my children?
- Will my interest in my business and home be impacted?
- Will a cheap, do-it-yourself prenup really be enforced by a Georgia court?
- Can't I just use a a sample prenup to fully protect my interests?
- What issues are covered by a premarital agreement?
- Can I utilize a postnuptial agreement ?
- If I get a postnuptial agreement, what are the pros and cons?
4 Prenup Tips
- Give yourself enough time: Try to get a prenup well in advance of the wedding. It's best to plan in advance so that all the details can be worked out and each party has a chance to fully evaluate the document.
- Try too keep emotions out of it: It's always better to arrange a prenup based upon the financial facts. Be as objective as possible both in assessing your future spouse's economic situation and your own. Know that a prenuptial agreement is a smart move and that adding emotions to the negotiation will not help matters.
- Look at your finances objectively: It's important to make sure that each party understands his or her finances. Get a prenup attorney who understands what the parties want to accomplish and who can get it done.
- The prenup should be enforceable: Make sure the document is valid, reasonable and will stand-up in court.
Some examples of Marital Property
Without a prenup, marital property gets divided between spouses. Here are some examples of marital property:
- all income
- property acquired during the marriage
- brokerage accounts
- real estate
- business income
- 401(k) accounts
- IRA accounts
We have seen many shocked clients when they are informed their retirement accounts do not belong solely to them.
We Provide An Evaluation
We do an evaluation of each party's financial position, including asset types, debt profile and related circumstances. We do this to help ensure that assets are disclosed so that the prenup is valid.
Second Marriage Prenuptial Agreements
Many people who enter into a second marriage use a prenup to help ensure certainty with respect issues like property division and support in the case of divorce. Second marriage prenups can involve issues that a first marriage prenup may not have had to address.
Each Party Needs Their Own Attorney
We strongly insist on representing only one individual when writing a prenuptial agreement. Your partner needs to have their own prenuptial agreement attorney. This helps to limit the opportunities for either spouse to challenge the premarital agreement in superior court by claiming he or she was unfairly deprived of the ability to have counsel or didn't fully understand the documents being signed.
What If We Sign A Prenup And Then Move Out Of Georgia?
Generally, other states will enforce a Georgia prenuptial agreement. It is important that the prenup followed the law of the state where it was written. The prenup must not be unconscionable under the laws of the state where the parties have relocated.
What A Prenup CAN'T Do
There are some things that a court will not enforce in a prenup. Here are some of them:
- Restrict child support, custody, or visitation rights: These sorts of restrictions are against public policy.
- Financially “Encourage” divorce: Courts do not want to see a financial incentive for divorce.
- Sanction A Spouse for Infidelity, Drug Use or Religious Upbringing: Courts will not enforce prenup requirements like who does laundry, the dishes or takes out the garbage. Nor will they get involved in clauses about religious upbringing.
Challenging A Prenup: 9 Reasons
Sometimes a party wants to challenge a prenup. Here are some ways that a prenup can be attacked:
- If it's not signed.
- If a party did not fully disclose all of their assets.
- You were not represented by independent counsel.
- If it was unconscionable when it was signed.
- If the agreement has become unconscionable.
- If there was duress involved.
- If there was fraud.
- If there was misrepresentation.
- If there was coercion.
What Happens if One Party Does Not Have an Attorney?
Courts want to see full disclosure to an unrepresented party (that is a party without a lawyer). To help ensure that the prenup is valid, two things need to be demonstrated to fully ensure that the agreement is enforceable:
(a) The party without legal counsel must be fully informed about the terms and basic effect of the agreement and the rights they were giving- up by signing the prenup.
(b) The unrepresented party understood the language of the prenuptial agreement and understood the agreement that was entered into.
Prenups Don’t Effect All Areas of Marriage
Georgia prenups cannot regulate child custody or child support. They don't have the power to regulate your behavior and they cannot punish a spouse for being unfaithful. We have had clients ask if a prenup can provide for the amount of sex they must have, that all purchases must be made in cash, that clothes not be left strewn on the floor. All these provisions are unenforceable in Georgia.
Celebrities Smart Enough to Get Prenups
Many celebrities are smart business people, in addition to being famous and talented. They are advised by smart managers, savvy financial advisers and experienced attorneys. Therefore most top celebrities get prenups when they marry. Here are some celebrity couples who were smart enough to get prenuptial agreements:
- Angelina Jolie and Brad Pitt
- George Clooney and Amal Alamuddin
- Catherine Zeta Jones and Michael Douglas
- Jessica Biel and Justin Timberlake
- Tom Cruise and Katie Holmes
- Nicole Kidman and Keith Urban
- Khloe Kardashian and Lamar Odom
- Mark Zuckerberg and Priscilla Chan
- Chris Rock and Malaak Compton-Rock
- Britney Spears and Kevin Federline
- Charlie Sheen and Brett Rossi
5 Reasons to get a Prenup
Different debts: When a couple gets married, they may have very different debts. One partner may have a lot more debt than the other. In these cases it makes sense to get a prenuptial agreement to ensure that the debt is divided properly if the marriage doesn't work out.
Second marriages: Prenups are often used to dictate who pays which expenses for children from previous marriages. They also can direct how both partners' assets will be split at death (as well as in a divorce situation).
Inheritances: This issue arises mostly in the situation where a spouse inherits a home that both parties live in. A prenuptial agreement is used to provide that you maintain your separate interest in that home, even if you both contribute to paying the mortgage.
Very different incomes: If one spouse earns far more than the other spouse it usually doesn't make any difference in a marriage, because both spouses usually just share. But in the event of a divorce, a prenuptial agreement can specify the amount the higher-wage earner pays or the lower-wage earner would get.
Business ownership: If one or both parties have a business, a prenuptial agreement is important. It protects the business owner in the event of divorce and it protects the non-owner spouse from potential business liabilities should the business fail.
What Benefits Do Georgia Premarital and Postmarital Agreements Provide?
While this can be a sensitive and personal decision for the couple involved, there are many benefits that can come about from having a prenuptial agreement. These include:
- Prenups (and Postnups) exist to eliminate conflict. A premarital agreement can reduce the conflicts that might occur should the marriage end.
- Prenups are great estate planning tools. A premarital agreement can be used to support your estate plan and avoid the courts making determinations on issues like property.
- Prenups can document any special arrangements that have been made between spouses.
- Prenups help distinguish between what is separate and what is marital property.
- Prenups can help assign debt. A premarital/postmarital agreement can institute rules and procedures to assign debt such as credit cards, mortgages and school loans to the appropriate spouse to avoid both spouses sharing debt liability.
More Grounds to Contest a Georgia Prenup
Prenups and postnups must comply with Georgia law. Georgia law provides that prenup and postnup agreement must be equitable and it will assume that such agreements are equitable as to both parties.
This means that under the law the party contesting the agreement will have to overcome the presumption that the agreement is fair and prove that it is unfair.
There are other grounds, however, for challenging a prenuptial agreement that may be available in your case. These include:
- The prenup concerns child custody or child support. A court will not enforce an agreement on child custody or support. A court will likely not toss out the entire agreement, but it will ignore these parts of the contract;
- The agreement must be in writing and must be signed by both parties;
- The agreement (for a prenup) must have been signed “in contemplation of marriage”;
- The agreement is invalid because one spouse forced the other to sign it (no coercion!);
- The prenup is “unconscionable” or grossly favors one spouse; and
- Either party was not forthcoming with a full disclosure of his or her assets and liabilities.
Atlanta Metro Area Prenuptial Agreement Lawyers
While a Georgia prenuptial or postnuptial agreement serves many important benefits, there are a few issues that the agreement cannot address, such as child support and child custody. The main difference between a prenuptial and postnuptial agreement is that a prenuptial agreement is entered into prior to the marriage, and a postnuptial agreement is entered into after the marriage. However, the prenuptial agreement and the postnuptial agreement are both very similar in that they can serve the same purposes.
Whatever your circumstances, you can expect The Sherman Law Group, headquartered in Roswell, GA and Cumming, GA, to work personally with you to counsel you, address your objectives, and tailor-make a prenuptial or postnuptial agreement that meets your specific goals and objectives.
One of the complaints divorce and family lawyers hear most frequently from clients is that they wish they had a prenup before they were married. Or clients say that they wish they had gotten a postnup signed during their marriage, when times were good. These types of agreements are fairly easy to work-out when the relationship is good. Call us today at (678) 712-8561.
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