Prenuptial Agreement FAQ
What is a prenuptial agreement?
A prenuptial agreement is a contract entered into by two people who are
to be married. The purpose of a Prenuptial Agreement is to set forth certain
rights for each party in the event of a divorce. Sometimes provisions
for property distribution upon death are included, but such provisions
are better placed in a Last Will and Testament.
Why do people get prenuptial agreements?
The most common reason for a Prenuptial Agreement is to protect property
that one or both parties owned before the marriage from becoming divided
upon divorce.
What is an "antenuptial
agreement" or a "premarital agreement"?
These are all synonyms for a Prenuptial Agreement. They all refer to the
same concept, the same type of document.
Can I sign a prenuptial or post-nuptial
agreement after I get married?
Yes. It would be called a "Post-Nuptial Agreement" and Georgia
law does currently recognize such documents.
Does everyone getting married need a
Prenuptial Agreement?
Prenuptial agreements are not for everyone. Prenuptial Agreements are
generally utilized by parties who have considerable assets prior to the
marriage and want to keep those assets separate or those who have been
through a divorce and want to minimize the cost and time if they unfortunately
go through another divorce. Without a prenuptial agreement, it is possible
in certain circumstances for separate or premarital property to lose its
separate quality and it can then become marital property or can be used
to pay alimony.
Can a Prenuptial Agreement cover alimony?
Sometimes, Prenuptial Agreements are used to limit, establish or eliminate
alimony in the event of a divorce.
Can a Prenuptial Agreement affect child
custody or child support?
Generally speaking, Prenuptial Agreements do not deal with child custody
or child support. Judges make the final decision on custody, and parties
cannot pre-determine child support because the law regards child support
as being a right for a child, and parties cannot override that right.
Custody also must be determined AT THE TIME OF THE DISPUTE since no one
can predict all the circumstances which will exist at the time of a custody
dispute.
I already have a house and property and
I want to protect it. Will a Prenuptial Agreement help?
Yes. If you own property before the marriage and you want to protect that
property in the event of divorce, a well drafted and enforceable Prenuptial
Agreement can make it easier for you to keep that property in the event
of a divorce.
Do I need my own lawyer if my fiancé's
attorney prepared a Prenuptial Agreement?
Yes. It is important to have your own counsel explain fully the proposed
Agreement and the potential pitfalls that could affect you in the event
of a divorce. Your attorney can suggest changes to the proposed Agreement
that can dramatically affect to your benefit what happens in the event
of a divorce.
Does my fiancé need their own
lawyer if my attorney prepares a Prenuptial Agreement?
Yes. Not only does it make it more fair (each side has independent advice),
it also makes it more enforceable since neither can later argue that they
did not understand what they were signing.
Even if my spouse and I have a Prenuptial Agreement,
can we change the terms later?
Yes. You can "re-up the Prenup" by having your attorney prepare
an addendum to the original Agreement. After that has been properly signed
and witnessed, it becomes a part of the original Agreement and will reflect
the new terms you have changed.
What if my spouse and I decide, after
years of marriage, that we no longer want to have the Prenuptial Agreement
in effect?
Most well-written Prenuptial Agreements will contain a provision that
dictates exactly how to cancel the Prenuptial Agreement so that it is
no longer in effect. Further, your attorney can build in "sunset"
provisions to the original Prenuptial Agreement that provide for its
automatic cancellation after an agreed-upon amount of years.
Will a Prenuptial Agreement
determine how my spouse's property is distributed after his/her death?
Not unless you insist on such a provision. It is strongly recommended
that you each have a Last Will and Testament to cover what happens to
property upon the death of a spouse. Generally, a good Prenuptial Agreement
will contain language that says that either of you are free to give or
will away any property you want to the other party.
Are Prenuptial Agreements expensive?
As is in most cases, the cost is based on how long it takes your attorney
to prepare the Agreement. Prenuptial Agreements take a lot of time to
prepare since they are an attempt to resolve disputes which have not
yet occurred and which are based upon factors which do not yet exist
(changes in income, assets, the birth of children, etc.) In some limited
cases, Prenuptial Agreements can be prepared on a "flat fee"
basis. See your attorney for more complete fee and cost information.
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