Georgia Prenuptial Agreement FAQ

What is a prenuptial agreement?
A prenuptial agreement is a contract entered into by two people who are to be married. The purpose of a Prenuptial Agreement is to set forth certain rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament.

Why do people get prenuptial agreements?
The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.

What is an "antenuptial agreement" or a "premarital agreement"?
These are all synonyms for a Prenuptial Agreement. They all refer to the same concept, the same type of document.

Can I sign a prenuptial or post-nuptial agreement after I get married?
Yes. It would be called a "Post-Nuptial Agreement" and Georgia law does currently recognize such documents.

Does everyone getting married need a Prenuptial Agreement?
Prenuptial agreements are not for everyone. Prenuptial Agreements are generally utilized by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.

Can a Prenuptial Agreement cover alimony?
Sometimes, Prenuptial Agreements are used to limit, establish or eliminate alimony in the event of a divorce.

Can a Prenuptial Agreement affect child custody or child support?
Generally speaking, Prenuptial Agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined AT THE TIME OF THE DISPUTE since no one can predict all the circumstances which will exist at the time of a custody dispute.

I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
Yes. If you own property before the marriage and you want to protect that property in the event of divorce, a well drafted and enforceable Prenuptial Agreement can make it easier for you to keep that property in the event of a divorce.

Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
Yes. It is important to have your own counsel explain fully the proposed Agreement and the potential pitfalls that could affect you in the event of a divorce. Your attorney can suggest changes to the proposed Agreement that can dramatically affect to your benefit what happens in the event of a divorce.

Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
Yes. Not only does it make it more fair (each side has independent advice), it also makes it more enforceable since neither can later argue that they did not understand what they were signing.

Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
Yes. You can "re-up the Prenup" by having your attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.

What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
Most well-written Prenuptial Agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. Further, your attorney can build in Asunset@ provisions to the original Prenuptial Agreement that provide for its automatic cancellation after an agreed-upon amount of years.

Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
Not unless you insist on such a provision. It is strongly recommended that you each have a Last Will and Testament to cover what happens to property upon the death of a spouse. Generally, a good Prenuptial Agreement will contain language that says that either of you are free to give or will away any property you want to the other party.

Are Prenuptial Agreements expensive?
As is in most cases, the cost is based on how long it takes your attorney to prepare the Agreement. Prenuptial Agreements take a lot of time to prepare since they are an attempt to resolve disputes which have not yet occurred and which are based upon factors which do not yet exist (changes in income, assets, the birth of children, etc.) In some limited cases, Prenuptial Agreements can be prepared on a flat fee basis. See your attorney for more complete fee and cost information.

SOURCE: DivorceNet

SOURCE FOR POST: Georgia Family Law Blog

5 Things You Didn’t Know About Alimony

AlimonyAlimony is a payment from the higher income spouse to the lower income spouse after divorce.  The law regarding alimony has a number of quirks you may not be aware.  Here is a list of 5 things it is likely you didn’t know about alimony:

1.  If your ex-spouse has a sex change, you still have to pay alimony, at least in Florida.  This is despite the fact that alimony could not be payable to a same sex partner.

2.  If your ex-spouse enters a registered domestic partnership with someone of the same sex, you still have to pay alimony, at least in California and also in Oregon (but not Virginia).  This is despite the fact that alimony would end if your ex had remarried.

3.  Even if your ex-spouse tries to kill you, you can’t end alimony if you have a non-modifiable alimony clause in your divorce decree, at least in Missouri.  That being said, even if this had happened prior to alimony being determined, in many states fault is not considered when making determinations of alimony.

4.  Men are entitled to receive alimony.  More and more men are pursuing this option.  And women are just as happy about paying alimony as men are.

5.  Determining the amount and length of alimony is somewhat of a black art and well worth speaking to a lawyer about.  Although the exact factors considered differ from state to state, generally a court considers your and your ex-spouse’s financial situations, career paths, ages, roles during the marriage and health.  However, determinations are very fact specific.

SOURCE: Divorce Zone

Child Custody and Visitation

Making custody decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.

Types of Custody

  • Legal Versus Physical Custody

    Legal custody is the right to make decisions about your child, including:

    • Education
    • Religion
    • Medical issues
    • Discipline

    Physical custody is having the child physically present with you.

  • Sole Versus Joint Custody

    With sole custody, you alone have legal and physical custody of your child.

    In a joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child. This might mean:

    • Having the child spend a significant amount of time with each parent
    • Spending weekdays with one parent and weekends with the other parent
    • The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
    • The parents moving in and out of a home where the children live (called "nesting")

    Parenting Agreements

    Most states require divorcing parents to have a written plan outlining:

    • Where the child will live
    • Details of when the child will be with the noncustodial parent
    • Who will make parenting decisions and how
    • Where the child will be during holidays and school vacations
    • How vacation time with each parent will be determined
  • (more…)

    Georgia Divorce Law

    Divorce Laws in Georgia

    Georgia divorce laws have maintained for 13 grounds required for divorce. Among these grounds are adultery and cruel treatment. However, most divorces in Georgia are granted on the no-fault ground that the marriage is “irretrievably broken” and without fault or wrongdoing. Additionally, one of the spouses must have resided in Georgia for at least 6 months prior to filing for a decree of divorce in Georgia.

    Alimony & Equitable Distribution in Georgia

    Georgia is known as an equitable distribution state. According to the divorce laws in Georgia this means that the marital property must be divided fairly or equitably, but not necessarily equally.

    Alimony is granted not for the purpose of punishing or rewarding one spouse but to provide an adequate income for the spouse who has become economically dependent on the other. Either spouse then, can be awarded alimony. Such factors as the prior standard of living of the couple and the length of the marriage shall be considered when awarding alimony.

    Georgia Child Support, Child Custody and Child Visitation

    According to Georgia divorce law, custody of all children must be determined before a divorce will be granted. The parents may decide who receives custody of their children. If they are unable to come to an agreement the court will then resolve the matter. Such issues as the age and gender of the children, the relationship with the parents and which parents has been the primary caregiver will be considered. Additionally, the court must also take into account the wishes of the child regarding the primary residence if he or she is between the ages of 11 and 14. The non-custodial parent will usually be granted visitation rights. However, the parents may also decide upon visitation rights. If they cannot come to an agreement in advance the court will make a determination based upon the schedule for possession of minor children.

    Child support is determined by the “child support guidelines” as set forth by divorce law in Georgia. Expect to pay child support until the age of 18 or when the child graduates from high school, whichever is later, but not past the age of 20.

    SOURCE: Divorce Interactive

    Tax Treatment on Sale of Principal Residence by Divorced Couples

    Married couples are allowed up to $500,000 ($250,000 each) in profits, tax free from the sale of their principal residence, as long as they have owned and occupied the residence as a principal residence for at least two of the five years before the sale. Formerly, a spouse who moved out as a result of divorce lost his or her $250,000 deduction because it was no longer the principal residence. However, thanks to a change in the tax law, an ex-spouse can now retain that exclusion.

    The law contains a specific provision relating to property used by the spouse of a former spouse pursuant to a divorce decree (26 U.S.C. § 121 (d)(3B)). This section states that “an individual shall be treated as using property as such individual’s principal residence during any period of ownership while such individual’s spouse or former spouse is granted use of the property under a divorce or separation instrument.”
     
    This addresses the case of where an individual has retained ownership in the house but where the former spouse occupies the house for a period of more than 3 years from the time the owner (the non-occupying individual) has vacated the home. This allows the non-occupying individual to exclude up to $250,000 of gain when the house is sold, even though he or she did not actually occupy the home for two of the last five years before the sale.

    To qualify, the spouse who moved out must remain an owner and the divorce or separation agreement must grant that spouse the use of the home. If a spouse who is the sole owner remarries, the new spouse must live in the house for two years to qualify for the full $500,000 exclusion.   

    SOURCE: DivorceNet