Prenuptial Agreements, Disputes & Postnuptial Adjustments - Top Atlanta Law Firm

Modern marriage is about both the heart and the head. Planning for the termination of a marriage is now a commonplace endeavor.

While this planning could understandably make people bristle with discomfort, it can and should be done in such a way as to confer benefits on both parties. This is the right thing to do for mutual satisfaction and it makes a couple’s prenuptial planning more enforceable in the event it needs to be utilized. Circumstances can change or disputes may arise that make an agreement more important after marriage; in those cases, there can be Postnuptial Agreements or Adjustments.

Certainty – A well structured agreement will remove uncertainty in the event of the dissolution of marriage. A well written agreement should entice each party to enter into it willingly. The aim of the agreement should be increased financial stability and clarity for all parties involved.

Communication – The agreement can set the framework for deciding important marital issues, leading to greater personal and financial understanding between spouses. These agreements at their core are an attempt at complete honesty and contemplate the advantages of resolving issues before they start.

Foresight – The agreement should be the framework for other estate planning, so that in the event of death, there is coordination in one’s documentation and one’s estate passes in the manner that the parties intended. (See Estate Planning, Wills & Trusts, Probate & Estate Administration and Estate & Trust Disputes, Will Contests.) Do not sign a prenuptial agreement when there is not a proper Will or Trust that takes into consideration providing the spouse with less income a fair amount of money when death occurs. While the spouse with the larger income plans to take care of his spouse, unexpected circumstances can cause the death of that spouse before a proper Will is made. The Saylor Law Firm LLP had such a case this year.

Negotiations over a prenuptial agreement may create tension close to a wedding, so proper advance notice to both potential spouses and early timing and discussion should be highly encouraged. Additionally, it is always important to retain an attorney to represent each person in any negotiation.

There is a test for Prenuptial Agreement validity, based on Scherer, a 1982 Georgia decision. The standard for invalidating a prenuptial agreement is:

(1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
(2) is the agreement unconscionable?
(3) have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?”

There was a time after Scherer that Prenuptial Agreements were often affirmed when there was a divorce or a death. However, beginning in 2015 full disclosure seemed to become more important to the Georgia courts.