Georgia sets a low bar for consideration in these agreements, but not every promise clears it.
Promising What You Already Owe
The general rule, stated in Holsomback v. Caldwell, 218 Ga. 393 (1962), is “that a promise to perform, or the performance of an act which a party is legally bound to perform will not constitute fresh consideration for the performance of another.”
Applied to marriage, that means simply agreeing to keep being married is not enough. As the Georgia Supreme Court quoted with approval, “[t]he mere promise of an undivorced wife to live with her husband and perform such duties as are ordinarily imposed upon her by the marriage contract is only a repetition of the promise made at the time the marriage contract was entered into.”
Unless the Other Spouse Forfeited the Right
Holsomback then supplies the exception, and it decided the case. If a spouse “has forfeited the right to his wife’s common-law duties and consortium by cruel treatment or any ground sufficient to entitle her to a divorce,” then “her agreement to condone his acts and resume cohabitation would furnish such consideration.”
There, a wife who had grounds to divorce her husband gave them up and returned to him after he promised to will her everything and deed her their home. That promise was supported by consideration, and equity could enforce it against his estate.
Creditors Are a Separate Problem
Consideration also matters to people outside the marriage. In Gerschick v. Pounds, 281 Ga. App. 531 (2006), a husband facing a large judgment transferred his interest in the marital residence to his wife. A jury found the conveyance fraudulent. Georgia’s current fraudulent transfer law is at OCGA 18-2-70 and following.
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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!