FAQs About Prenups

Kyla LinesFAQs, Information, Prenup

For a general overview of prenuptial agreements, please see our previous article, What are Prenuptial Agreements and Why Do Couples Get Them.

Can I wait until after marriage and do a post-nuptial agreement?

We wish you wouldn’t.  Post-nuptial agreements are basically a prenuptial agreement that is entered into after the couple has married. While Georgia law technically recognizes both pre- and post-nuptial agreements, there is no Georgia case law or guidance to ensure that post-nuptial agreements will be valid in case of divorce except in very limited circumstances.  We recommend that couples make an agreement BEFORE getting married.

Can a prenuptial agreement cover alimony?

Sometimes, prenuptial agreements are used to limit, establish or eliminate alimony in the event of a divorce. If circumstances have changed significantly since the prenup was written, the judge retains the ability to modify the amount of support, but that rarely happens.

Can a prenuptial agreement cover child custody or child support?

In a word, no.  Custody must be determined at the time of the dispute rather than at the time a prenup is written, because no one can predict what the circumstances will be at the time of a custody dispute.  Also, parties cannot pre-determine child support because the law regards child support as a child’s right; the parties to a marriage cannot override that right. Georgia also has very strict rules on how child support is calculated, and those rules involve the circumstances of the parties at the time child support is being determined.

Do the parties need separate attorneys when preparing a prenuptial agreement?

Yes, we think so.  For a prenup to be valid, the court has to feel confident that both parties had the opportunity to seek independent advice to make sure that neither party was forced to sign the prenup. An attorney can explain the proposed agreement and the potential pitfalls in the event of a divorce. They might be able to suggest changes to the proposed agreement that can make the agreement fairer to one party or the other.

Can we change or terminate the prenuptial agreement later?

In some cases you may be able to draft an addendum to the original prenup.  Usually there must be new consideration.  Prenups often contain a provision that dictates exactly how to cancel the agreement, or a “sunset clause” that specifically states that the prenup dies a natural death at a specific point in time in the future, i.e., after so many years of marriage.

Will a prenuptial agreement determine property distribution after death?

A prenup will often contain provisions about what happens to property upon the death of one of the spouses.  We prefer when parties express such wishes in a will or trust document, and urge our clients to seek expert advice on proper estate planning.