Approximately 61,000 marriages take place in Georgia every year. Thousands of those occur in the spring and summer wedding season and many of them will also end in divorce. Many couples will enter into prenuptial agreements prior to actually walking down the aisle. Some of those agreements may later be enforced while others will be nullified. If you are contemplating a prenuptial agreement during this wedding season, there are several factors that you should consider.
Criteria established by the Georgia Supreme Court in the case of Scherer v. Scherer
In 1982, the Georgia Supreme Court was faced with deciding whether the terms of a premarital agreement should be enforced. In its decision, which to date is still applicable, it established three main criteria courts should look at when considering whether or not a prenuptial agreement is enforceable.
- Was the agreement fraudulently obtained using duress or did it involve a misrepresentation or a nondisclosure of material facts? The closer to the date of the marriage the agreement is signed, the stronger the chances are of having the agreement invalidated. Additionally, both parties must fully disclose their assets to each other.
- Is the agreement unconscionable? An agreement is not unconscionable just because it is unfair. Factors that make it unconscionable include one party fraudulently taking advantage of the other and not fully disclosing assets, or forcing a party to sign the agreement under duress or coercion. Both parties being represented by separate counsel helps to ensure that the agreement will be upheld.
- Have facts and circumstances changed so that enforcement of the agreement would be unfair and unreasonable? Foreseen changes are generally insufficient to invalidate the agreement.