Once a Georgia trial court rules a prenuptial agreement void and unenforceable, the judge or jury deciding the rest of the divorce may not consider the agreement or its terms.
The Rule
In Chubbuck v. Lake, 281 Ga. 218 (2006), the trial court’s pretrial ruling that the agreement was unenforceable was not challenged on appeal, so the Georgia Supreme Court reviewed only its effect, not whether it was right. It held that once the trial court determined the agreement void and unenforceable, “the existence of the agreement and its contents were not to be considered by the fact-finder.” The Court also said that an agreement that fails the three-part test for enforcement is not incorporated into the final decree.
What Happened in Chubbuck
The spouses signed a premarital agreement five days before their wedding and separated three months later. Over the wife’s objection, both spouses were allowed to testify that a document they signed before marrying gave the husband at least $41,000 if they divorced. When the jury asked whether it could use that testimony, the judge said yes. The verdict gave the wife the marital home and its contents and required her to pay the husband $41,000.
The Supreme Court held that the testimony should not have been allowed, reversed, and sent the case back for a new trial. Even though the document itself was kept out of evidence and was not called a prenuptial agreement, hearing its terms was enough.
What Follows
So property division and alimony are decided without the agreement. If it waived alimony, that waiver goes with it, along with the bar on attorney’s fees it would have created, as our post on alimony waivers and attorney’s fees explains.
A judge does not always have to reject an agreement whole. See Are Prenuptial Agreements Valid in Georgia? and Does a Severability Clause Save a Georgia Prenuptial Agreement?
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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!