If you are considering divorce and have a prenuptial agreement (also called a “prenup”), you may be reading through it and wondering if it will hold up. As a reminder, a prenuptial agreement is a contract agreed upon by two individuals prior to their upcoming marriage. A judge will consider several factors when determining whether a prenuptial agreement is valid or not.
Your Prenup Needs to Have This
First, a prenuptial agreement must contain a full and complete disclosure of income and asset values. It can describe everything from how alimony will be paid, to how property, assets, debts, and child support would be handled if divorce were to occur. A prenup can even include how the couple would like to handle the custody of beloved pets.
No matter what the agreement covers, there are three criteria the judge will consider to determine whether or not it is enforceable:
(1) [W]as 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?
The prenup will be unenforceable if any of these three criteria are not met.
When Your Prenup May Be Partially Unenforceable
Additionally, a prenuptial agreement which merely lists the future spouse’s assets, but does not show the value of those assets, may be partially unenforceable. It may be more difficult to satisfy the above criteria if your prenup is set up this way. First, you must prove there was “a full and fair disclosure of the assets of the parties prior to the execution of the [prenuptial] agreement.” Also, you must prove that the party opposing enforcement entered into the prenuptial agreement “[freely], voluntarily, and with full understanding of its terms.”
How Confident Are You In Your Prenup?
How confident are you with your prenuptial agreement? If you are unsure it will stand up through the divorce process, or have other questions about divorce, be sure to hire a reputable attorney to stand by your side. At Hall & Navarro, our attorneys hold over 75 years of experience and specialize in family law matters like divorces, prenuptial agreements, legitimation, and child custody in the State of Georgia. Contact us to get started on your case.
Case Law Referenced:
- Scherer v. Scherer, 249 Ga. 635, 640 (1982)
- Dodson v. Dodson, 298 Ga. 117 (2015)
- Blige v. Blige, 283 Ga. 65, 68 (2009)
- Lynch v. Lynch, 351 Ga. App. 160, 165 fn. 17 (2019)