What Is a Georgia Postnuptial Agreement?
A Georgia postnuptial agreement addresses the division of marital property if your marriage ends. It’s like a prenuptial agreement, but you and your spouse sign a postnup after marriage.
In addition to property division, it can determine spousal maintenance and provide for children. The agreement may also protect you from being responsible for the debt your spouse acquired before you tied the knot.
Without a postnup, the state relies on equitable distribution laws. This means courts divide marital property based on factors such as each spouse’s income, the health of the spouses, and the length of the marriage. As a result, equitable distribution orders issued by the court are not always 50/50 (GA Code § 19-5-13). Having a postnup allows you and your spouse to determine how property will be split. It prevents future disputes leading to costly divorce proceedings.
Postnuptial agreements in Georgia are valid and enforceable under these conditions:
- The document is in writing and signed by both spouses without coercion.
- Both parties have provided full disclosure of assets, liabilities, and income.
- The agreement is fair and conscionable to both spouses.
- The document is signed in front of two witnesses, at least one of whom must be a notary public (GA Code § 19-3-62).
How to Write a Postnuptial Agreement for Georgia
Our step-by-step builder guides you through each step of writing your postnup. It includes state-specific details so you can create a valid document.
- Provide demographic information: Give the spouses’ names. List any shared children or children from previous relationships.
- Define separate vs. marital property: Include property owned by each spouse prior to the marriage and property acquired since. Property may include bank and retirement accounts, investments, and real estate. Assign ownership of property and how it will be divided if a divorce occurs. Include a waiver of equitable distribution so that your agreed-upon division is final.
- Safeguard business holdings: If you own a business, state which party will retain ownership.
- Disclose debts: Have both spouses list their debts, including those they had before marriage. Decide who will be responsible for paying the debts.
- Specify tax preferences: Weigh the benefits of filing jointly versus separately. Indicate which method you’ll use.
- Divide marital home: Decide if you will sell the marital home upon divorce. If you will keep it, clarify which spouse will get to keep living in it.
- Set spousal support: If one spouse will receive maintenance, outline the conditions of spousal support. Georgia law stipulates default payment procedures for spousal support (GA Code §§ 19-6-1 — 19-6-53), but a postnup can overrule them. Both parties may choose to waive the right to maintenance mutually.
- Include additional clauses: Insert additional clauses that cover the care of a spouse who becomes disabled or the division of property if a spouse dies. You can also dictate the care of a pet after a divorce via an additional clause or a separate pet custody agreement.
- Guarantee full disclosure: Georgia requires both parties to a postnup to verify full financial disclosure of assets and debts. A postnup can be invalidated if fraud is later discovered.
- Address dispute resolution: Decide how disputes will be resolved.
- Sign and notarize: Georgia law requires notary acknowledgment for postnups to be valid and enforceable. Both parties must sign the document in front of two witnesses, including one who is a notary. The witnesses should also sign the postnup, attesting that the parties agreed voluntarily (GA Code § 19-3-62).
Sample Georgia Postnuptial Agreement
View a free Georgia postnuptial agreement template to know what to include in yours. When you’re ready, create your own via our document editor. Available in PDF and Word formats.
Legal Requirements and Considerations for Georgia Postnups
State statutes and principles applying to postnuptial agreements are laid out in GA Code § 19-3-66, which requires a written document signed by both parties, fair financial disclosures, and witnesses.
Signing Requirements
Per legal precedent set by case law, postnups must be in writing and signed by both spouses (Spurlin v. Spurlin (2011)).
Legal Representation
Georgia doesn’t require legal representation for postnups. Each party can enter it without consulting a lawyer. However, it’s strongly recommended that each spouse hire independent counsel to ensure they get a fair deal.
Excluded Terms
Postnups in Georgia cannot govern child custody or support, which are determined by family courts. They also can’t attempt to dictate one spouse’s behavior during the marriage. Furthermore, any prenup that leaves one spouse unable to support themselves will be invalid.
Capacity to Contract
Per GA § 19-3-64, property transfers that occur during the marriage may take place directly between spouses or may be carried out by a trustee on the spouse’s behalf. The contracting party must have the mental capacity to enter into an agreement.
Validity Requirements
Case law illustrates the requirements for a valid Georgia postnup (Murray v. Murray (2016)). Courts should assess whether the agreement was fraudulently obtained, whether its terms are fair, and whether a change in circumstances has since made it unfair.
