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

Divorce Manual: CONFIDENTIALITY

One of a lawyer’s most fundamental ethical obligations is to maintain the confidentiality of client communications. With few exceptions, some of which are noted below, your lawyer cannot voluntarily reveal anything learned while representing you. These rules exist so you can tell your lawyer the whole truth without fear that what you say will later be used against you.

Direct communications between you and your lawyer are protected by the attorney-client privilege. This means that not even a court can make you or your lawyer tell what you have said or written to each other. Information that your lawyer obtains from documents or people other than you cannot be voluntarily revealed, but may in some cases be disclosed if ordered by a court.

But be aware that the attorney-client privilege can be lost if someone other than you and your lawyer (or your lawyer’s staff) hears or reads what you and your lawyer say or write to each other. There are many ways in which your privilege can be waived by disclosure of your confidences to persons other than your lawyer: for example, talking to your lawyer in the presence of a third person not on your lawyer’s staff; telling others what you have discussed with your lawyer; and allowing others to read correspondence between you and your lawyer. If you bring a friend or relative with you to your lawyer’s office for moral support, your lawyer may ask your friend or relative to wait in the reception room in order to preserve the privilege. Because the rules regarding confidentiality and privilege vary slightly from state to state, you should never discuss confidential information about your case with anyone other than your lawyer without first checking with your lawyer.

There are also several exceptions to your lawyer’s duty not to reveal client confidences. A conversation in which a client tells a lawyer that the client intends to commit a crime or, in some states, a fraud, is not privileged and the lawyer could be forced to testify in court about the conversation. The privilege may also be lost if you or one of your witnesses commits perjury and in other circumstances which you should discuss with your lawyer. Also, if a lawyer is accused of wrongdoing by the client, the lawyer may reveal confidential information necessary to defend against the accusation.

Confidential information provided to others may also be revealed during divorce proceedings. Psychologists, therapists, public officials and others may be required by law in your state to report suspected child abuse. Judges may report suspected tax fraud to the Internal Revenue Service. Financial, medical, and psychological records may be subject to subpoena. In summary, your right to privacy may be diminished during a divorce.

SOURCE: American Academy of Matrimonial Attorneys, Divorce Manual; A Client Handbook

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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