A prenuptial agreement or “prenup” is a contract entered into by a couple prior to a marriage that addresses the division of the couple’s assets in the event of divorce or other dissolution of the marriage.  Prenuptial agreements are a point of controversy, with many soon-to-be spouses taking offense at the notion of signing such documents.  However, just as car insurance and life insurance are commonly regarded as reasonable measures for protection in the event of a worst case scenario, prenuptial agreements can save you tons of time, money, and emotional stress in the event of the failure of your marriage, however unlikely that may be.  Also, remember that your prenuptial agreement can say anything you want it to say – it’s a common misconception that all prenups render the less wealthy of the parties cheated in the event of divorce.

In Georgia, prenuptial agreements are enforceable, and in most cases, when a prenup is presented to a court in the context of a divorce proceeding, the court will incorporate the terms of the agreement into the parties’ final decree of divorce.  However, in some cases a court will refuse to enforce a prenuptial agreement if it find that the agreement violates any one (1) of three (3) following criteria for enforcement which are commonly referred to as the “Scherer factors” after first being articulated in the Georgia case of Scherer v. Scherer, 249 Ga. 635 (1982):

  1. Was the agreement obtained through fraud, duress, or mistake or through misrepresentation or nondisclosure of material facts?

  2. Is the agreement unconscionable?

  3. Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?

If the court determines that “yes” is the appropriate answer to any of the questions set forth in the Scherer factors, then the agreement will be set aside and will not be considered at all when the judge or jury decides the issues at stake in the divorce.

In order to ensure that your prenuptial agreement holds up in court, it is important that you retain experienced, competent counsel to prepare it.  In fact, each party to the prenup should be represented by an attorney, and the same attorney should not represent both parties.  Other “best practices” will increase the changes that the prenuptial agreement will hold up in court, such as each party’s attachment of a detailed and accurate list of assets and debts to the agreement.

Kimberly Coleman has extensive experience drafting prenuptial agreements for clients, and in arguing that such agreements should be when they violate any of the Mallen factors listed above.  If you are interested in having a prenuptial agreement drafted, have been presented with a prenup by your soon-to-be spouse and have questions, or if you previously signed a prenup and believe it should not be enforced, contact Kimberly Coleman Law today for a consultation!