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

Wills: A Fact Sheet

What is a Will?

A will is a document that you use to say what you want to have happen to your property after you die. A person making a will is called a "testator."

What happens if I die without a will?

If you die without a will, your property will be distributed according to Georgia’s intestate law. "Intestate" is when a person dies without a will. If you die without a will, then your property will be distributed to your spouse and your children. They will inherit equally, although your spouse will inherit at least 1/3 of your estate, no matter how many children you have.. If one of your children dies before you do, then his or her children will inherit his or her share equally. If you do not have a spouse or children, your parents will inherit and if your parents die before you do, then your brothers and sisters will inherit equally. If one of them dies before you do, then his or her children will inherit his or her share equally.

What property can I give away in my will?

You can use your will to say how you want any property that you own to be divided. This includes real property or land and personal property such as furniture, clothing, dishes, pictures and jewelry.

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GEORGIA PROBATE PROCEEDINGS : WHEN THERE IS NO WILL

When a person dies in Georgia without a will, their estate goes through probae under the laws of intestacy. Essentially, this is a "one size fits all" statutory substittue for a will.

There is a cost set by law for the filing of every new probate proceeding, as well as for most pleadings filed after the initial filing, including objections, caveats and claims. There is a minimum deposit toward costs required for every new proceeding which must be paid in advance. Unless otherwise ordered or directed by the court, costs are the responsibility of the person filing the original proceeding, and full payment of any balance due may be required prior to issuance of a final order. A party filing an objection or caveat to a pending proceeding or a creditor filing a claim must pay the fee for the filing of same before the court is required to accept it for filing.

Court costs are considered an expense of administration under law, having a priority over other debts and claims, and must be paid by the personal representative of the estate prior to the payment of other debts and prior to distribution to heirs or beneficiaries. The failure or refusal to pay court costs may result in the dismissal of proceedings, the removal of the personal representative or other actions by the court to assure and receive payment.

SOURCE: Judicial Branch of Georgia

If a family member or loved one has died in metro Atlanta or Marietta, Georgia, and you need assistance in probating and settling their estate, the Marietta GA probate lawyer and attorney Steve Worrall can assist you. Call us at 770-425-6060.

GEORGIA PROBATE PROCEEDINGS : PENALTIES FOR FILING FRIVOLOUS PLEADINGS, ETC.

Caution is particularly given to persons representing themselves in court that there are provisions under Georgia law for the assessment of penalties against anyone who files false, frivolous, vexatious or groundless pleadings. These penalties may include the dismissal of such pleadings, the assessment of costs of court and attorney’s fees against the offending party, and other remedies appropriate to the particular case. Additionally, there are similar penalties for the failure or refusal, without just cause, to respond to proper discovery requests.

Generally, one must have “legal grounds” for objecting to or for filing a caveat to a probate proceeding. Because of the penalty provisions briefly discussed above, it is especially recommended that legal advice be sought before the filing of an objection or caveat to a pending probate proceeding.

SOURCE: Judicial Branch of Georgia

GEORGIA PROBATE PROCEEDINGS : PROCEEDING WITHOUT AN ATTORNEY “PROCEEDING PRO SE”

If you proceed without an attorney, i.e., pro se (a Latin phrase meaning “for one’s self”), it will be your responsibility to determine or select the proceeding appropriate to your situation. The staff of the Probate Court may not make the determination or selection for you, since to do so may constitute the unauthorized practice of law, a misdemeanor crime under Georgia law. Neither the Court nor the County can accept responsibility for incorrect decisions made by the staff, and they have been directed to refrain from giving that kind of advice.

It will also be your responsibility to properly complete all forms, which must either be typed or legibly printed, and to assure the sufficiency and accuracy of all required information. The staff are not permitted to perform clerical tasks for the public and cannot accept responsibility for determining the legal sufficiency of the information required for any proceeding or form. The staff will be able to answer any basic questions about the standard forms and about any deadlines for the filing of proceedings. They will also be able to schedule uncontested hearings and tell you how other matters are scheduled by the Court.

The Probate Judge is required by law to remain impartial to all parties. The Judge must treat every case as though it may become contested. Therefore, the Judge also may not advise you on which proceeding is the most appropriate to your case. The Judge is prohibited from discussing the facts or evidence in any contested case with one party unless all parties are present or represented. You should not ask to discuss your case privately with the Judge, and you should understand if the Judge stops any discussion which appears to require the presence of others.

Furthermore, if you proceed without an attorney, it will be your responsibility to make arrangements for personal service on all persons upon whom personal service is required, to assure the filing of a proper return of service on all such persons, to assure the publication of any notices not performed by the court or its staff, and to secure the presence of or interrogatories from any witnesses whose testimony is necessary under law or desired by you for the presentation of your case. If the matter is contested, it will be your further responsibility to prepare yourself and your case for trial, including the pursuit of and response to discovery.

It is the responsibility for all such matters which would be assumed by an attorney employed to represent you, and you are again encouraged to consult first with an attorney before deciding whether to proceed pro se.

SOURCE: Judicial Branch of Georgia