Georgia Prenups: What Not To Include

Prenuptial agreements used to be associated almost exclusively with Hollywood celebrities and ultra-wealthy individuals, but times have changed. The trend toward delaying marriage until later in life has created an increase in the number of couples resorting to prenuptial agreements to protect interests in businesses and other assets brought into the marriage. A prenuptial agreement may cover a host of issues the parties to it wish to resolve prior to officially tying the knot. However, as expansive as a prenup can be, it is best to leave out some items that could make all or parts of the agreement unenforceable.

Child custody and child support

Georgia courts have the ultimate decision-making authority when it comes to child support and child custody. Child custody and parenting time decisions depend upon a judge deciding what is in the best interests of the child regardless of any agreements made between the parents. Among the factors judges in Atlanta take into consideration when deciding custody and parenting time are the following:

  • Existing emotional ties between the child and each parent.
  • Relationship between a child and its brothers and sisters.
  • Ability of each parent to educate and raise the child.
  • Knowledge each parent has of the child, including the child’s needs.
  • Ability of each parent to provide a safe and nurturing home environment.
  • How involved each parent has been in a child’s education, social and extracurricular activities.
  • Ability of each parent to offer the child a stable family unit.

    As with child custody, Georgia law leaves the final word to judges when it comes to determining child support. State law recognizes that parents share responsibility for supporting their children. The right to child support belongs to each child even though payment usually goes to the parent to whom custody is awarded.

    Courts will not enforce provisions of a prenuptial agreement pertaining to child support. In the vast majority of situations, the children affected by agreements reached by the parties to a prenup have yet to be born, and, as with custody arrangements, courts have the final say on what is in a child’s best interests regarding support.

    Establishing personal rather than financial obligations

    Courts usually refuse to enforce provisions of a prenuptial agreement dealing with non-financial matters strictly related to the relationship of the parties or personal matters between them. For example, courts will not entertain enforcement of provision requiring a spouse to dress in a particular way or requiring one of the parties to do specific chores around the house.

    Georgia courts take the position that parties to a prenuptial agreement may use them to preserve and protect financial rights before entering into a marriage. They are not intended to be used to address relationship issues the parties to a marriage should be capable of resolving without the intervention of the court. Clauses dealing with one party being required to remain at home and take on household chores instead of working outside the home would put a judge in the position of enforcing a form of servitude.

    Immoral or illegal behavior

    Because they are enforceable under state laws governing contracts, Atlanta courts will not enforce the provisions of a prenuptial agreement that are either immoral or illegal. For instance, a judge would not enforce a prenup that absolves one of the parties of their obligation to support a child born of the marriage as this would violate state child support laws. By the same token, a clause allowing each of the parties to engage in extramarital affairs would not be enforceable in court because it violates Georgia criminal law making it a misdemeanor to commit adultery.

    The parties to a prenup can protect themselves against having their entire agreement rendered unenforceable because of the inclusion of a clause advocating immoral or illegal behavior. The law prohibiting courts from enforcing contracts contain immoral or illegal behavior allow judges to invalidate the offending clauses without invalidating the entire agreement provided the prenup states that it is severable. This allows a judge to refuse to enforce specific provisions of the agreement without affecting other portions of it that will remain enforceable.

    Obtain legal advice about prenup agreements

    Although they are intended to preserve the financial rights of the parties, signing a prenup without having a clear understanding of your rights and how they are affected could be a costly mistake. An Atlanta attorney experienced in negotiating and drafting prenuptial agreements is a valuable source of legal advice and guidance before signing an agreement.