Sunday, August 23, 2009

Prenuptial Agreements Part Two: How enforceable are prenuptial agreements in Georgia?
Question: How enforceable are prenuptial agreements in Georgia?

Answer: The trend has been that prenuptial agreements are becoming more and more enforceable in Georgia. That said, the best way to improve the likelihood that a prenuptial agreement will be enforceable in Georgia is understanding how Georgia courts view prenuptial agreements before entering into one.

In Georgia, the enforceability of prenuptial agreements has been a matter of public policy since 1982. Scherer v. Scherer, 249 Ga. 635, 641 (1982). At that time, the Georgia Supreme Court established this three-step test for determining the enforceability to prenuptial agreement:

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?

Scherer, 249 Ga. at 641.

The first step tells us that it is important to disclose income and assets to your future spouse in the agreement and make sure your representations are complete and honest. Although it is important not to exert undue pressure about signing a prenuptial agreement, simply stating that you will not marry if the document is not signed, in and of itself, is not enough duress to make the document unenforceable. Mallen v. Mallen, 280 Ga. 43 (2005).

With regard to the second step, you may ask how Georgia courts define the term “unconscionable.” Under Georgia law, an unconscionable contract is one “abhorrent to good morals and conscience where one of the parties takes a fraudulent advantage of another.” William J. Cooney, P.C. v. Rowland, 240 Ga. App. 703, 704 (1999). Prenuptial agreements are often between two parties of very different financial status. Essentially, in the second step, courts are examining whether the document, when it was written, creates an extremely unfair result. This does not necessarily mean that the parties must leave the marriage with a more equivalent financial status than when they first married. If the agreement perpetuates an already existing difference in financial status that, in and of itself, will not make an agreement unconscionable. Mallen v. Mallen, 280 Ga. At 47.

The third step focuses on the circumstances at the time the agreement is being enforced and looks at whether those circumstances were reasonably foreseeable. Curry v. Curry, 260 Ga. 302 304 (1990). The best way to prepare for this step is to include in the document a statement about certain circumstances that are foreseeable, such as future children and job loss and other financial difficulties.

Although the trend in Georgia is toward enforcing prenuptial agreements, there’s no real substitute for having an attorney that specializes in domestic matters guide you in creating an enforceable document.

As shown above, a trial court can split custody of minor children if it finds that same is in the best interests of the children.



Written by Stern & Edlin Lawyer, Carla M. Schiff.
Click here to learn more about the Stern & Edlin Family Law firm.

Labels:

Tuesday, August 18, 2009

Jon and Kate's Divorce: Considerations of Splitting Custody of the Eight Children
One of the many issues Jon and Kate's pending divorce action presents is custody and visitation of the eight (8) children. Will Kate obtain custody of all eight (8) children, or will Jon obtain custody of some of the children and Kate obtain custody of the remaining children? Although the divorce action is pending in Pennsylvania, what does Georgia law provide on splitting custody of children in a divorce action?

Georgia law is well established that a custody determination in a divorce action is based on the best interests of the children. Mock vs. Mock, 258 Ga. 407, 369 S.E.2d 255 (1988). The trial judge must exercise sound legal discretion, examine which parent promotes the best interest of the child, and the trial judge’s decision will not be interfered with by the appellate court unless it appears that the trial judge abused his or her discretion. Lynn vs. Lynn, 202 Ga. 776, 44 S.E.2d 769 (1947). There is case law in Georgia supporting a trial judge’s awards of split custody. Anderson vs. Anderson, 278 Ga. 713, 606 S.E.2d 251 (2004), Morris vs. Morris, 238 Ga. 291, 232 S.E.2d 920 (1977).

In the Anderson case, the trial court ordered and the Georgia Supreme Court affirmed the judgment of the mother being awarded custody of the son, whom the mother brought into the marriage and her husband adopted, and the father being awarded custody of the daughter. Anderson at 713. In the Morris case, the trial court gave custody of one of the two children of the marriage to each of the parties. The Georgia Supreme Court affirmed the trial court by finding that the trial court did not abuse its discretion. Morris at 291.

As shown above, a trial court can split custody of minor children if it finds that same is in the best interests of the children.



Written by Stern & Edlin Lawyer, Gary Graham.
Click here to learn more about the Stern & Edlin Family Law firm.

Labels:

Sunday, August 2, 2009

Prenuptial Agreements Part One
Question: I live in Georgia and am engaged to be married.
Do I need a prenuptial agreement?


Answer: That depends. If you think you may need a prenuptial agreement ask yourself what you are seeking to protect.

If you are seeking to protect future income and assets you earn by working during and/or after the marriage then you will need a prenuptial agreement. Otherwise, any income and assets you accrue from work is considered marital property and is divided in the event of divorce. Moore v. Moore, 249 Ga. 27 (1982). Also, you could be ordered to pay some of your future income as alimony depending on the circumstances. O.C.G.A. §§ 19-6-4 and 19-6-5.

Some individuals are only seeking to protect assets they had at the time of the marriage or assets that they will receive by gift or inheritance during the marriage (collectively “separate property”). Although they can protect those assets in a prenuptial agreement, those assets can also be protected under current Georgia law without a prenuptial agreement. Payson v. Payson, 274 Ga. 231, 232 (2001).

If you are seeking to obtain custody of children born during the marriage or determine an amount of child support, these are things that generally cannot be determined in advance of marriage. Custody of children is based on the best interests of the children at the time of the divorce Bodne v. Bodne, 277 Ga. 445 (2003) and child support is based on financial circumstances at the time of the divorce. O.C.G.A. § 19-6-15.

To know whether a prenuptial agreement is right for you or how to best protect yourself without a prenuptial agreement, you should consult an experienced family law attorney prior to marriage.

Up next: Prenuptial Agreements Part Two: How enforceable are prenuptial agreements in Georgia?



Written by Stern & Edlin Lawyer, Carla Schiff.
Click here to learn more about the Stern & Edlin Family Law firm.

Labels: ,