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

When Bankruptcy Meets Divorce

Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect.

Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, “discharge”) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition–for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)–he gained the protection of an “automatic stay,” preventing creditors from taking any actions against him, his income or his property to collect their debts.

If the “debtor’s” income was less than the sum needed to maintain his lifestyle, including debt service, he would generally opt for the Chapter 7 liquidation, taking advantage of whatever homestead and property exemptions his state allowed, thus protecting his assets from creditors. If any nonexempt property existed, the bankruptcy trustee would liquidate it to pay secured creditors first, with unsecured creditors, such as ex spouses (who lacked collateral or guarantees) at the back of the line.

While Chapter 7 liquidation was not a means to avoid a mortgage or shirk taxes secured by liens, it did provide the debtor a clean slate, free from pesky consumer debt–credit cards, loans from friends and family, legal or medical bills–and whatever equitable distribution payments he couldn’t comfortably afford. Plus, if a person happened to live in Florida, Iowa, Kansas Oklahoma, South Dakota or Texas, he could really make out like a bandit because these states had (and still have) limitless homestead–and generous property–exemptions.

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Premarital Agreements FAQ’s

1) WHAT IS A PRE-MARITAL AGREEMENT?
A pre-marital agreement may be entered into by competent adults who are legally able to marry. The purpose of such an agreement is to avoid the usual legal consequences of joining the estates of two parties by marriage. Many people have an established estate, and/or established responsibilities to prior family, which they would like to see protected from the new spouse and new obligations. This can only be done by the consent of both parties to the marriage, and with full knowledge of each other’s financial situation.

2) WILL IT HOLD UP IN COURT?
It is important to understand that the enforceability of the agreement is the most important concern, and sometimes compromises must be made to ensure enforceability. An agreement that was made without full disclosure, or entered into without proper legal advice, or under duress, will probably not hold up in court. You must be aware that such a document will almost always be scrutinized by a court at the time it is enforced to determine if it was fair at the time it was signed, whether the parties understood what they were signing, and had proper legal advice.

3) WHEN SHOULD YOU MAKE A PRE-MARITAL AGREEMENT?
To avoid the appearance of duress, the agreement should be done as far in advance of the wedding date as possible, and before expensive preparations are made. Both sides should have independent legal counsel to advise them. Remember, this is basically a divorce settlement entered into before marriage, and, if done properly, could serve as the basis of an uncontested divorce if the marriage ends, thus avoiding a costly legal battle over these issues.

4) CAN A MARITAL AGREEMENT BE DONE AFTER THE WEDDING?
A Marital Agreement can be made after the wedding whenever differences arise between the parties regarding the future financial issues. The Agreement must be based upon some consideration other than the marriage itself. Sometimes such an Agreement is made as part of a reconciliation of the parties or following some other dispute. Such an Agreement has been held to be just as enforceable as a Premarital Agreement.

SOURCE: DivorceNet

Grandparents Rights to Visitation

grandparents rights to visitation In recent years, the issue of Grandparent’s rights to visitation in divorce has come to the forefront. Sadly, what will often happen in divorce are the parents of the non-custodial parent end up cut off from their grandchildren. This may be especially true if the grandparents and grandchildren live a far distance from each other.

Grandparent’s rights have become a controversial issue. On the one hand why should grandchildren be denied time with a grandparent because their parents no longer live together or are getting a divorce? Conversely, at what point does the intervention of the courts infringe upon a person’s civil liberties?

grandparents right to child visititation People going through a divorce often feel that they have little or no control over their lives anymore. It seems the court system takes over their life, telling them how to live, where to live, how much money to live on and on.

VISITATION

Exactly what is visitation? To put it into its simplest form, visitation is when the court sets a specific schedule for a person to have access to the child. In other words in the case of grandparent’s visitation the court will order that the children be made available to the grandparent on specific day for a specified amount of time.

Unfortunately, just because a grandparent is being denied access to their grandchild does not necessarily mean they will qualify for court ordered visitation. Grandparent visitation is governed by statute and case law, and each state has their own laws.

During a divorce, communications between all the parties often breaks down. Every effort within reason should be made to have time with the grandchild before court papers are filed. Mediation is one option available before filing papers. Filing in the courts for visitation should be the last resort.

The requirements for court ordered visitation vary by state. In most, but not all states, if the grandchild’s parents are still married the grandparents are not entitled to visitation. Depending upon the state, the following situations may give rise to grandparent visitation:

  • Pending divorce
  • Parents already divorced
  • Parent deceased
  • Child born out of wedlock

As you can see, this is a complicated issue. If you are a grandparent that is being denied time, without good reason, you have a big decision to make. Once the decision to pursue visitation the next step is to find a professional that specializes in third party custody and visitation.

SOURCE: DivorceHQ

Alimony/Spousal Support

Spousal support is the right of one spouse to receive an award of money from the other spouse, on a temporary or permanent basis, whenever a court determines that the facts of that particular situation warrant it. In Georgia, the statutes and the courts refer to such spousal support as alimony. No one is entitled to alimony by virtue of marriage alone. The court may grant alimony to either spouse from the income or estate of the other, either as periodic payments or lump sum awards. It may end at the death or remarriage of the recipient, or it may end sooner by the specific terms of the Final Decree or Judgment. Alimony may also be awarded on a temporary basis during the pendency of the divorce action.

There are no guidelines for determining alimony, but it is based upon the determination of the trier of fact of the needs of one party and the ability to pay of the other party. Some of the factors that the court may consider in determining first if alimony is appropriate, and then in what amount, are as follows:

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