Prenuptial agreements are written contracts entered into prior to marriage to clarify in advance the rights, duties, and expectations of both spouses. Postnuptial or post-marital agreements are contracts that are entered into subsequent to the marriage, when the spouses seek to clarify their future.
Prenuptial agreements are most often entered into when there is a substantial disparity in the wealth between two parties contemplating marriage. A prenuptial agreement enables a person who built substantial wealth through a business, or, who may at a later date inherit wealth, be secure in the knowledge that should their marriage go awry the rights and duties of the parties are predetermined.
Prenuptial agreements have been enforced in Georgia since 1982. Prior to that time they were held unenforceable, as Courts frowned against agreements in contemplation of divorce as contrary to public policy.
It is very important for prenuptial agreements not be so one sided that a court would hold them to be unenforceable. The key elements inclining a court whether or not to enforce a prenuptial agreement are: Was there any Fraud, Duress, Mistake, Non-
Disclosure or Misrepresentation used in securing the agreement; whether the agreement as written was unconscionable; and finally, whether there has been any change in circumstance since entering into the agreement that would make enforcement of the agreement unfair.
One of the most important aspects of a prenuptial agreement is for both parties to attach a recent statement of net worth, showing all assets and liabilities known to the party as of the date of the execution of the agreement, as well as a statement listing their income for the past several years. It is equally important that both parties be represented by counsel when entering into a prenuptial agreement so that each one will know their legal rights under the agreement.
Postnuptial agreements have become increasingly popular. Oftentimes couples will separate, even going so far as to file divorce proceedings, only to reconcile at a later date. In this instance, a postnuptial agreement provides the parties with a document detailing division of property and assets, child custody, child support, visitation, and spousal support if they decide to divorce at a later date, saving them much repeat anguish and future legal expenses.