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.

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