Getting married is usually the one of the happiest moments in a person’s life. The excitement of planning the wedding, the reception and the honeymoon often overshadow any thoughts of what might happen should things go down hill. However, sometimes couples decide that a prenuptial, or antenuptial (also called a “postnuptial”) agreement is a good idea prior to saying “I do.”

A prenuptial or antenuptial agreement is a contract between the parties that defines what they have and what they owe at the time of the marriage. They also can define how those assets and debts will be treated should the marriage end in divorce.

A “prenup” as it is so often called, can also include assets and debts not yet acquired by the parties. It can establish how assets and debts, such as retirement accounts, bank accounts, credit cards, loans, etc, will be treated at the time of divorce – whether the account will be divided by the parties or whether it will go to the person whose name is on the account, or some combination. A prenup can also describe what happens to real estate, vehicles, and virtually anything the parties want to delineate, with the exception of issues related to children. Finally, a prenup can also waive alimony and attorney fees in a later divorce.

Georgia law is not terribly strict regarding the requirements of a prenup. O.C.G.A. §19-3-62 requires the following:

1. The agreement must be in writing;

2. Both parties must sign it; and

3. At least two witnesses must be present and also sign, one of whom must be a notary public.

Additionally, prenups shall be “liberally construed to carry into effect the intention of the parties, and no want (lack) of form or technical expression shall invalidate such agreements.”

The less known marital contract is the postnuptial agreement. Postnuptial agreements (sometimes called “reconciliation agreements”) are a rather recent phenomenon in Georgia. A postnuptial agreement is essentially the prenup but entered into by the parties after the date of marriage.

Postnuptial agreements can be entered into at any time by the parties after the date of marriage and can refer to the same account, assets, debts, etc as the prenup, as well as determining how those assets and debts would be dealt with in the event of divorce. These often arise out of one party’s desire to make amends for misconduct during the marriage (e.g. being caught in an affair) or where one party wants out of the marriage but is persuaded to stick it out a bit longer, so long as a postnup is included.

You should always be aware of your options before signing any prenuptial or postnuptial agreement. However, the courts will normally hold parties to a properly drafted and signed agreement – even if you did not see an attorney first – unless there is fraud, duress or coercion. We are always happy to draft prenuptial and postnuptial agreements and to counsel our clients on the pros and cons of these agreements. Please contact us with questions.