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What a prenup can and can't cover in Georgia
Summary
Georgia prenups commonly cover property each spouse keeps as their own, a business, alimony, a set payment if the couple divorces, and rights at death such as inheritance or life insurance. Georgia's Supreme Court has enforced agreements covering each of these.1, 2, 3
An agreement covers only what it says. In the first Georgia case, an agreement about one block of stock didn't stop the wife from asking for alimony or a share of the husband's other assets.1
Custody and child support stay with the court, which decides custody on the child's best interests. And money terms have to be clear enough for a judge to apply.4, 5, 6
Property each spouse keeps
Many agreements say each spouse keeps the property they bring into the marriage, and sometimes what's in their own name during it. In Adams v. Adams, both gave up claims to property titled in the other's name, and the court enforced it. In Scherer v. Scherer, the wife released her rights in the husband's company stock, and it stayed his separate property.
An agreement that only waives each spouse's rights in the other's property is still a prenup, so it has to meet the signing rules.7, 8
A business
A business is often the biggest asset in these agreements. In Mallen v. Mallen, the husband owned a business, and after 18 years of marriage he kept the assets he brought into it and those built up during it.
Disclosing a business means more than naming it. In Dodson v. Dodson, the agreement listed two businesses without their values, and it wasn't enforced.
Alimony
A prenup can limit alimony or give it up. The Supreme Court enforced agreements that limited alimony to four years or replaced it with a set payment.3, 2
A waiver of alimony puts each spouse's income in focus. In Corbett v. Corbett, the wife gave up alimony without knowing what the husband earned, and the agreement wasn't enforced.
A set payment if you divorce
Some agreements name a payment instead of leaving it to the court. The agreement in Adams v. Adams gave the wife $10,000 for each year of marriage, up to $100,000. After nine years, the court ordered a $90,000 payment.
Rights at death
Prenups often cover what happens when a spouse dies, not just divorce. The agreement in Corbett v. Corbett gave up inheritance rights, and the agreement in Scherer v. Scherer named the wife as a life insurance beneficiary.
Conduct clauses, like infidelity
Some agreements tie money to behavior. The agreement in Adams v. Adams said the wife would give up her rights for "unforgiven adultery." The court enforced the agreement, but the case didn't turn on that clause, and evidence about the husband's alleged infidelity was kept out as irrelevant on those facts. There's no Georgia Supreme Court decision here on how such a clause itself holds up, so it's a question for a lawyer.
Children: what the court still decides
Custody is decided on the child's best interests. 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, and custody agreements under that law don't cover child support.4, 11
In Spurlin v. Spurlin, the agreement covered custody and child support. The trial court enforced its property and alimony terms but kept authority over custody and child support.
Terms a judge can actually apply
Vague money terms can fail. A formula based on "total annual income" that was never defined wasn't enforced. But a note saying the agreement had "certain ambiguities" to fix later didn't undo a complete agreement. A judge can also enforce part of an agreement and not the rest.6, 12
Questions you might ask a lawyer
- Which of our assets and future earnings should the agreement cover?
- How should our business be valued and described?
- Is the alimony or payment term clear enough to apply years from now?
- Does the agreement cover what happens at death as well as divorce?
Common questions
Can a Georgia prenup waive alimony?
It can, and Georgia's Supreme Court has enforced alimony limits and waivers. A waiver can fail if the other spouse's income wasn't disclosed.3, 10
Can a prenup decide custody or child support in Georgia?
The court keeps the final say. Custody is decided on the child's best interests, and in Spurlin the court kept authority over custody and child support despite the agreement.4, 5
Does a prenup cover everything once it's signed?
Only what it says. In Scherer, an agreement about company stock didn't stop the wife from seeking alimony or a share of other assets.1
Can a prenup include an infidelity clause in Georgia?
Some agreements have included one, such as the "unforgiven adultery" clause in Adams v. Adams, but that case didn't decide how such a clause holds up on its own.
Sources
- ^ Scherer v. Scherer (Ga. 1982), stock kept as separate property; agreement didn't bar alimony or division of other assets (Justia)
- ^ Adams v. Adams (Ga. 2004), set payment per year of marriage; separately titled property (FindLaw)
- ^ Mallen v. Mallen (Ga. 2005), business and limited alimony; agreement enforced (FindLaw)
- ^ O.C.G.A. § 19-9-3, custody and the child's best interests (Justia)
- ^ Spurlin v. Spurlin (Ga. 2011), court kept authority over custody and child support (Justia)
- ^ Eversbusch v. Eversbusch (Ga. 2013), undefined income formula not enforced; part of an agreement can be enforced (FindLaw)
- ^ Sullivan v. Sullivan (Ga. 2009), a property waiver is a marriage contract that needs two witnesses (FindLaw)
- ^ O.C.G.A. § 19-3-62, prenuptial agreements, as amended in 2018 (Justia)
- ^ Dodson v. Dodson (Ga. 2015), businesses listed without values; not enforced (FindLaw)
- ^ Corbett v. Corbett (Ga. 2006), alimony and inheritance waived without knowing income; not enforced (FindLaw)
- ^ O.C.G.A. § 19-9-5, custody agreements between parents (Justia)
- ^ Newman v. Newman (Ga. 2012), complete agreement enforced despite a note about ambiguities (Justia)
Laws and court rules change. If something here looks out of date, email help@divorce.city.