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Prenuptial agreements in Georgia: what makes one hold up in a divorce
Summary
A Georgia prenuptial agreement has to be in writing, signed by both spouses-to-be, and witnessed by at least two people, one of them a notary public.1
Even a properly signed agreement isn't automatically enforced. In a divorce, the spouse who wants it enforced has to show it wasn't the result of fraud, pressure or hidden finances, isn't unconscionable, and wouldn't be unfair to enforce given how things have changed.2
Signing it the right way
- In writing, and signed by both people who agree to be bound by it.1
- Witnessed by at least two people, one of whom is a notary public. The law was last changed in 2018, so an older agreement may have been signed under different rules.1
- Courts read these agreements to carry out what the couple intended, and small technical flaws in the wording don't void one on their own.1
The three questions a court asks
When a spouse asks the court to enforce a prenuptial agreement in a divorce, that spouse has to show all three of these:2
- The agreement wasn't the result of fraud, duress, mistake, misrepresentation or nondisclosure of important facts.
- The agreement isn't unconscionable.
- Looking at all the facts and circumstances, including any changes since it was signed, enforcing it wouldn't be unfair or unreasonable.
This test comes from a 1982 Georgia Supreme Court case, Scherer v. Scherer, and courts still apply it.2
Disclosing your finances
Hiding important financial facts can sink an agreement under the first question. What counts as enough disclosure depends on the facts. In one case, Georgia's Supreme Court enforced an agreement even though the husband hadn't listed his income, because his financial statement showed substantial assets, including his business, investments and two homes, and the couple had lived together for four years before signing.2
The safest course is a full written list of each person's income, property and debts, attached to the agreement.
A checklist from Georgia cases
Agreements have failed in Georgia over details that are easy to check before signing:
- Two witnesses, one of them a notary, sign it. Agreements with fewer weren't enforced.3
- Anything the agreement says is attached is actually attached. In one case the promised financial exhibits were missing.4
- Assets are listed with their values, not just named.5
- Each person has time to read it and a real chance to get their own legal advice. An agreement that said both had lawyers, when one didn't, wasn't enforced.6
If the agreement isn't enforced
Then the divorce goes ahead as if there were no agreement on those issues. Property is divided under Georgia's ordinary rules, and alimony is decided the usual way.
Questions you might ask a lawyer
- Does our agreement meet the signing and witness requirements?
- Was the financial disclosure complete enough?
- Have our circumstances changed enough that enforcing it could be unfair?
- Should each of us have our own lawyer review it before signing?
Common questions
Does a prenup need to be notarized in Georgia?
It must be witnessed by at least two people, and one of them must be a notary public.1
Can a prenup be thrown out in a Georgia divorce?
Yes. A court won't enforce it if it came from fraud, pressure or hidden finances, is unconscionable, or would be unfair to enforce given how circumstances have changed.2
Sources
- ^ O.C.G.A. § 19-3-62, prenuptial agreements, as amended in 2018 (Justia)
- ^ Dove v. Dove (Ga. 2009), the three-part test for enforcing a prenuptial agreement (Justia)
- ^ Sullivan v. Sullivan (Ga. 2009), only one witness; agreement not enforced (FindLaw)
- ^ Alexander v. Alexander (Ga. 2005), undisclosed account and missing exhibits (FindLaw)
- ^ Dodson v. Dodson (Ga. 2015), assets listed without values; agreement not enforced (FindLaw)
- ^ Corbett v. Corbett (Ga. 2006), undisclosed income; agreement not enforced (FindLaw)
Laws and court rules change. If something here looks out of date, email help@divorce.city.