Why You Should Get a Prenup

Why You Should Get a Prenup

Many people associate a “prenup” with an uncomfortable conversation between two persons who are about to get married but who are anticipating the possibility of divorce. 

It is true that couples may enter into a prenup intending for the contract to be enforceable if they ever divorce.

But if they understand the purpose and benefits of having a prenup, the idea should not be viewed as a strike against the marriage before it even begins. Instead, a prenup should be considered a useful way to protect one’s assets and avoid unnecessary disputes and disagreements if the marriage should end.

It is important to know the benefits of having a prenup and some of the reasons why you might want to consider having one if you are contemplating marriage. Not everyone needs a prenup. But if you do, it can be a valuable tool for protecting your assets in the future.  

What Is a “Prenup”?

What Is a “Prenup”?

In Georgia, a “prenup” or prenuptial agreement is referred to as an “antenuptial” agreement because it is a contract executed “before the nuptials” or before marriage.

An agreement entered during the marriage in contemplation of divorce may be referred to as a “marital settlement agreement (MSA).”

An antenuptial agreement is a contract between two parties who are contemplating marriage and want to provide for the disposition of their respective assets and define their respective rights if their marriage ends in death or divorce. 

This binding agreement is a way for future spouses to decide now what will happen with their property if their marriage ends, rather than subjecting themselves to the default rules of the state for dividing property upon death or divorce.

It is a way for the parties to make reasoned, rational decisions about their property now, rather than fighting over property at a time when feelings may be hurt, tensions likely are high, and both spouses are prone to emotional decision-making. 

Think of a prenup not as an untimely anticipation of divorce but as an insurance policy against the loss of control over your property during the possibly financially volatile time of divorce. 

Why Should I Have a Prenup?

Although not every married couple needs one, anyone can have a prenup. Antenuptial agreements are particularly important for parties who have or anticipate having any property or other legal rights that, without such an agreement, may be subject to the divorce or probate laws of the state upon the termination of the marriage. 

Here are some examples of why it may be important to have a prenuptial agreement:

  • You are a co-owner of a business. This is especially true if it will qualify as marital property in which your spouse will have an interest upon divorce or if you die. Your partners in your business may take issue with your spouse obtaining an interest in their business if you get divorced or die. A prenuptial agreement in which your future spouse agrees to waive her rights and interests in your business upon divorce will resolve that issue.
  • You have adult children from a previous marriage. You may want to leave most of your estate to your children rather than leave everything to your soon-to-be spouse. If you die or divorce, however, your new spouse will have certain rights and interests in your estate as your legal spouse that will defeat your intentions for providing for your children. Your spouse may agree to waive any interests in your estate that he or she might have otherwise by executing an antenuptial agreement. In consideration of that waiver, you also might waive similar interests in your spouse’s property.
  • You do not want to pay alimony. You and your spouse agree that neither spouse should be responsible for paying alimony to the other spouse upon divorce if the spouse who is otherwise entitled to alimony committed adultery during the marriage. Your prenup allows you and your spouse to determine your rights upon divorce in this manner.

What Is Required to Have a Prenup?

Section 19-3-62 of the Georgia Code sets out the requirements for antenuptial agreements. 

To have a valid prenup in Georgia, the agreement must be:

  • In writing;
  • Signed by both parties who agree to be bound; and
  • Attested by at least two witnesses, one of whom shall be a notary public.

In addition, to be valid and enforceable in Georgia, an antenuptial agreement must be procedurally and substantively fair. 

This means that:

  • The parties executed the agreement with full and fair disclosure of all the assets and debts of each party; and
  • The agreement does not favor one party over the other to such an extent that it would be unconscionable if the contract were enforced. 

If the above requirements are satisfied, your agreement may be legally binding. 

When Should I Sign My Prenup?

Parties should execute their antenuptial agreement in Georgia far enough in advance of the marriage so that each spouse has an opportunity to seek independent counsel regarding the agreement.

This does not mean that both parties must have retained counsel but that each spouse had a reasonable opportunity to do so. Thus, requiring your spouse to sign a prenup the night before your wedding does not afford your spouse an opportunity to seek advice from an attorney and be fully informed about the terms of the contract.

Several days’ advance notice is likely sufficient, but to be safe parties should make it a point to execute their agreement during the planning stages of the wedding. This can occur before sending out invitations to the wedding, for example. 

Do I Need a Divorce Attorney to Execute an Antenuptial Agreement in Georgia?  

An antenuptial agreement is just like any other contract; you are not required to have a divorce lawyer to have a prenup in Georgia. However, the rights and interests that are typically the subject of a prenup can be significant and complex. Therefore, it is recommended that you consult with an experienced divorce attorney.

They can explain the terms of any prenuptial agreement you are considering and advise you of the rights and interests that you may be giving up by signing it. 

If your partner has asked you to sign a prenuptial agreement in Georgia, you should contact our lawyers at Crystal Wright Law, LLC, before signing.  You can call us today at (404) 594-2143.