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Postnuptial agreements in Georgia: agreements signed during the marriage
Summary
A postnuptial agreement is signed after the wedding. Like a prenup, it usually says how property and alimony will be handled if the couple divorces. In Georgia cases, couples often signed one while trying to save the marriage.1, 2
Georgia courts look at these agreements with the same kinds of questions they ask about prenups, including whether each spouse's finances were fully and fairly disclosed. A judge can enforce all of an agreement, part of it, or none of it.1, 3
Custody and child support stay with the court. In one case the judge enforced a postnuptial agreement on property and alimony but decided custody separately, based on the children's best interests.1
How it differs from a prenup
A prenuptial agreement is signed before the wedding, and Georgia law sets out how it must be signed: in writing, signed by both, and witnessed by at least two people, one of them a notary public. That statute is written for agreements made before marriage.4
A postnuptial agreement is made by people who are already married. They often know much more about each other's finances, which can matter when a court asks whether the disclosure was enough.1
Disclosure during a marriage
In Spurlin v. Spurlin, the couple signed a reconciliation agreement after the wife had filed for divorce and then dismissed it. When she filed again, the court enforced the agreement on property and alimony. Disclosure was enough because she had access to the family business's financial records, had entered that information herself, and handled the husband's paychecks and the family bills. The agreement also listed the major assets and said both chose to skip formal discovery.
Compare a prenup case where the wife had no access to the husband's accounts and wasn't told their values. That agreement wasn't enforced, and the court pointed to the access the wife had in Spurlin as the difference.5
What's said when signing
In Murray v. Murray, a couple married about 34 years signed a postnuptial agreement, drafted by the husband's lawyer, that favored him. The wife said he promised to tear it up once she signed, so she saw it as symbolic. He said he only promised to destroy it if he felt they were in love again. She filed for divorce a few months later. The trial court found the agreement unenforceable, and the Georgia Supreme Court affirmed.
What each spouse understood about an agreement, and any promises made around signing it, can become part of what a court weighs.
Clear terms
In Eversbusch v. Eversbusch, a wife wrote a six-page letter agreement after the couple tried counseling, and both signed it. Ten years later, the court enforced its division of assets but not its alimony formula, because terms like "total annual income" were never defined and the formula assumed every child would finish college. Alimony terms can't be "incomplete, vague, uncertain, or indefinite".
Children: the court decides
The agreement in Spurlin also covered custody and child support. The trial court kept authority over both, and it decided custody under the best-interests factors in Georgia law, separate from the agreement.1, 6
Parents can give a judge an agreement on custody, but the judge can turn it down by finding in writing that it isn't in the child's best interests.7
Questions you might ask a lawyer
- How should our postnuptial agreement be signed and witnessed?
- Is our financial disclosure complete enough, even though we're already married?
- Are the alimony and property terms clear enough for a judge to apply?
- How would a court treat this agreement if one of us files for divorce soon after signing?
Common questions
Are postnuptial agreements enforceable in Georgia?
They can be. Georgia courts have enforced them when finances were fully and fairly disclosed, and refused to in other cases.1, 2
Can a postnuptial agreement decide custody or child support?
The court keeps the final say. In Spurlin, the judge enforced the agreement's property and alimony terms but kept authority over custody and child support and decided custody on the children's best interests.1
Can a judge enforce only part of a postnuptial agreement?
Yes. A judge can enforce all of it, part of it, or none of it.3
Sources
- ^ Spurlin v. Spurlin (Ga. 2011), reconciliation agreement enforced on property and alimony; custody decided on best interests (Justia)
- ^ Murray v. Murray (Ga. 2016), postnuptial agreement found unenforceable (Justia)
- ^ Eversbusch v. Eversbusch (Ga. 2013), vague alimony formula not enforced (FindLaw)
- ^ O.C.G.A. § 19-3-62, prenuptial agreements, as amended in 2018 (Justia)
- ^ Dodson v. Dodson (Ga. 2015), no access to the other spouse's accounts; agreement not enforced (FindLaw)
- ^ O.C.G.A. § 19-9-3, custody and the child's best interests (Justia)
- ^ O.C.G.A. § 19-9-5, custody agreements between parents (Justia)
Laws and court rules change. If something here looks out of date, email help@divorce.city.