Prenuptial agreements are valid in Georgia, but signing one does not guarantee that a court will enforce it.
Georgia Law Changed in 1982
Georgia courts once refused to honor a prenuptial agreement that looked ahead to divorce. In Reynolds v. Reynolds, 217 Ga. 234 (1961), the Georgia Supreme Court held that a husband and wife may not by contract promote the dissolution of their marriage, and that such an agreement was “wholly void as being against public policy.”
That changed in Scherer v. Scherer, 249 Ga. 635 (1982). The Georgia Supreme Court overruled Reynolds and held “that antenuptial agreements in contemplation of divorce are not absolutely void as against public policy.” Georgia has never enacted a premarital agreement statute, so Scherer and the cases following it are still the source of the rule.
What a Prenuptial Agreement Can Settle
In Sanders v. Colwell, 248 Ga. 376 (1981), the Georgia Supreme Court declared that “agreements in contemplation of divorce settling issues of alimony, property division … are not invalid.” So you and your future spouse can agree in advance on who keeps which assets and on whether either of you may seek alimony.
Valid Does Not Mean Automatically Enforced
A signed prenuptial agreement still gets a second look once a divorce is filed. Alexander v. Alexander, 279 Ga. 116 (2005), held that whether an agreement is enforceable is “a decision made in the trial court’s sound discretion,” and that in deciding the question the judge “essentially sits in equity” and may approve the agreement in whole or in part, or refuse to approve it at all.
So a judge can enforce part of your prenuptial agreement and set the rest aside.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!