Couples who are already married may wonder if they should have signed a prenuptial agreement before they wed. Luckily, you can still create a marital contract that functions similarly to a prenup even if you have already tied the proverbial knot.
If you would like to create a contract to manage your assets during your marriage and in the event of a divorce, contact a Cobb County postnuptial agreement lawyer for more information. A qualified family attorney could review your options with you and help you determine which course of action best addresses your needs.
A postnuptial agreement functions like a prenuptial agreement but is created after the involved parties are married rather than before. Postnuptial agreements—or “postnups”—manage assets, income, and debts during and after a marriage.
A postnup is a legally binding contract that both parties are obligated to follow unless a judge finds the agreement invalid and refuses to enforce it. A postnuptial contract can determine the property that each person would keep in a divorce, the financial or spousal support payments that one spouse would owe to the other, or the way the couple’s income is apportioned for the payment of marital expenses.
Some common reasons a married couple may choose to consult a Cobb County lawyer and create a postnuptial agreement include:
Parties to a postnuptial contract can negotiate almost any type of financial arrangement during and after their marriage. The only thing a marital agreement cannot do is establish binding decisions on issues related to child custody or child support.
Postnuptial agreements must be in writing and must be signed by both parties freely and voluntarily. The contract must also be witnessed and notarized. The agreement does not have to be filed with a court and is usually kept by the parties—or their attorneys—until it is needed.
Like any other contract, a postnuptial agreement must be carefully drafted to follow the requirements of Georgia law. These requirements are not statutory but were decided by the Georgia Supreme Court in the case of Scherer v. Scherer, 249 Ga. 635 (1982), and applied to postnuptial agreements in the case of Curry v. Curry, 260 Ga. 302 (1990). In the Scherer case, the Supreme Court instructed judges to analyze three factors when determining whether to uphold a marital contract:
Most attorneys who draft a postnuptial agreement in Cobb County begin the document by having each party list their financial assets and liabilities. If a person deceives their spouse about the value of their property during the creation of the agreement, the court may find the contract invalid.
Additionally, if the agreement is so unfair as to be unconscionable, a judge may refuse to enforce it. It is usually challenging to prove unconscionability, though, and many spouses only succeed in invalidating an agreement based on that reason in extreme circumstances.
More commonly, a judge may decide not to enforce an agreement if the parties’ circumstances have dramatically changed. For instance, if one spouse was worth millions of dollars when the postnup was created but subsequently lost all their money, the court may not enforce the same terms as were previously established due to the change in circumstances.
Couples who create a postnuptial agreement often find that they are more secure in their relationship when they know exactly what will happen if it ends. If you would like to discuss how these valuable financial planning tools may help your marriage, schedule an appointment with a Cobb County postnuptial agreement lawyer today.