Prenuptial agreements are neither common nor rare. They usually are requested when there is a substantial imbalance in the estate of the couple, or one party or the other wants to protect his or her interest in a family business or premarital property. Whatever the reason, a prenuptial agreement brings a strong dose of practicality to what is usually a romantic occasion and may be unwelcome to one party or the other. It might be considered a blueprint for the failure of a marriage. Stephen Land does not agree with this.
Best practices for prenuptial agreements
He believes that a prenuptial agreement, in the right circumstance, can avoid potential lengthy and expensive litigation, and he has drawn them up on many occasions. Prenuptial agreements have to be fair and both parties are entitled to full disclosure of financial information before reaching an agreement. It also should be noted that a lawyer can only represent one party. It would be an unethical conflict of interest for a lawyer to represent both parties in drafting a prenuptial agreement. Stephen Land's usual practice is to get the necessary information, draw up the agreement, and advise the non-client to take it to a lawyer. If he or she decides not to do so it needs to be clear that this is a free and voluntary decision. Taking this into consideration, please consider the following benefits:
Benefits of prenuptial agreements
- To protect the assets and future growth of a business, particularly a family business.
- To protect retirement plans, including additions made to such plans.
- To avoid the expense of litigation over alimony and division of property (custody and child support cannot be bargained away by a prenuptial agreement).
- To protect any other assets such as real estate, works of art, other personal property and family heirlooms.
- In cases where one party has substantial assets and the other little, a prenuptial agreement can provide a fair amount for the spouse having little while permitting the other to retain the bulk of the estate he acquired before marriage.
Georgia law and its protection of premarital assets
The law governing division of property, known in Georgia as equitable division of property, to a certain extent protects premarital assets from equitable distribution. A prenuptial agreement, if drafted properly, can go much further. Such an agreement can also protect assets in the event of “fault”, such as adultery. In Georgia all issues of fault are admissible in a trial, and a court or jury might seriously skew the division of property heavily in favor of a party free from such fault.
Enforcement of prenuptial agreements
The courts have been more willing to enforce premarital agreements when they are free of coercion or undue influence, or are not patently unfair. In particular, when both parties have a lawyer such agreements are very difficult to overcome if contested. Trouble comes when a party is unrepresented and the division of property is extremely one-sided in favor of a party with counsel, especially after a long marriage. In such cases a court might very well accept an argument that there was coercion, undue influence, or fraud, or even that the passage of time has made the agreement unsupportable. A good tip is to update the prenuptial from time to time.
Contact Stephen A. Land LLC to talk to a prenuptial agreement attorney.
We provide professional legal services for families from Alpharetta, Johns Creek, Milton, Forsyth and parts of Cobb County, Atlanta and across Georgia. To schedule an appointment, contact the firm online or call 404.550.1498.