A Georgia prenuptial agreement can do more than label what each spouse owns. It can limit what the judge is allowed to weigh when dividing the marital estate.
What the Agreement Said
In Arlotta v. Arlotta, 906 S.E.2d 912 (Ga. Ct. App. 2024), the parties signed a prenuptial agreement shortly before their wedding. Each had consulted a lawyer, and both attached financial disclosure statements. The husband’s disclosure showed he was the beneficiary of a trust his father created and held far more assets than his wife, including a partial interest in a professional sports team.
The agreement provided that neither party “nor any court” could consider separate property in determining any property settlement, and that a court could not consider separate property in setting alimony.
The Trial Court Struck Those Terms
The trial court found the agreement satisfied all three parts of the test Georgia applies to prenuptial agreements. Even so, it refused to enforce the two provisions above, holding they were against public policy because they barred the court from considering separate property in dividing marital property and awarding alimony.
The Court of Appeals Reversed
The Court of Appeals reversed that ruling. Having found the agreement passed the Scherer test, it reasoned, “it is not clear that there were any other factors that the trial court could properly consider in determining whether the agreement was enforceable,” because those criteria are exclusive.
The holding is a broad one: “So long as the Scherer test is met, Georgia law permits parties to enter into prenuptial agreements that waive benefits that they otherwise would have been entitled to by statute.”
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