Like any contract, a Georgia separation agreement needs consideration. In practice, the settlement itself supplies it.
Settling the Divorce Is Enough
In Sheppard v. Sheppard, 229 Ga. App. 494 (1997), a husband argued the parties’ separation agreement failed for lack of consideration. The Court of Appeals rejected it, applying OCGA 13-3-42, which provides that “[t]o constitute consideration, a performance or a return promise must be bargained for by the parties to a contract,” and that the performance may consist of “the creation, modification, or destruction of a legal relation.”
Because “the separation agreement was entered in contemplation of the parties’ uncontested divorce, the trial court did not err in determining it was supported by consideration.”
Ending the Dispute Is Enough
Guthrie v. Guthrie, 259 Ga. App. 751 (2003), puts it more broadly: “the termination of family controversies affords a consideration which is sufficient to support a contract made for such purpose.” The Court added that the agreement there “settled not only the divorce, but also the division of property, which provides sufficient consideration to support such agreement.”
Consideration Is Measured When You Sign
Guthrie also answers a question that comes up when circumstances change. The husband had brain cancer and died a few months after signing. His executors argued that his death extinguished the consideration and voided the contract.
The Court of Appeals disagreed, holding that “the adequacy of consideration must be tested by the facts and conditions existing at the time the contract was made.” What happened afterward did not unmake the bargain.
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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!