Prenuptial agreements facing more challenges

Several high-profile divorces have involved prenuptial agreements, where one of the spouses attempted to challenge the terms of the agreement. Prenuptial agreements are not only for the rich and famous, however, and more people have begun to challenge the validity of these agreements. A survey conducted by the American Academy of Matrimonial Lawyers revealed that 44 percent of attorneys polled had dealt with an increased number of prenuptial agreement challenges in the five years prior to the survey. Those considering prenuptial agreements in Georgia should understand the requirements for an enforceable prenuptial agreement and some techniques to ensure that the court will uphold the agreement if challenged.

Requirements for prenuptial agreements

Georgia law outlines the minimum requirements for valid prenuptial agreements. When assessing the enforceability of a prenuptial agreement, Georgia courts will assess whether:

  • A spouse used fraud, duress, misrepresentation of material facts or nondisclosure of material facts to get the other spouse to sign the agreement
  • The agreement was the result of one spouse's mistake
  • The agreement is unconscionable
  • Circumstances of the parties have changed so that enforcing the agreement would be unfair

Strengthening a prenuptial agreement

Experts suggest that people can take steps to increase the strength of their prenuptial agreements, including:

  • Making sure that each spouse has sufficient time to review the agreement
  • Ensuring that each spouse has legal representation while considering the agreement, or has explicitly waived representation
  • Providing full financial disclosure when negotiating the agreement
  • Including a provision in the agreement that the written agreement represents the complete understanding of the parties, and neither spouse is relying on oral agreements outside the writing
  • Not making the agreement completely lopsided, with one spouse getting nothing from the agreement
  • Not including provisions about child custody and child support, as parents do not have the right to refuse to pay or receive child support and the court makes custody decisions based on the best interests of the child

Talk to a lawyer

Reaching a prenuptial agreement with a future spouse can be an important part of making sure that each party's rights are protected and futures are secure. Entering into such agreements is not something that people should do without professional assistance. If you are considering a prenuptial agreement, seek the counsel of a seasoned prenuptial agreement attorney who can advise you how to proceed.