Understanding Prenuptial Agreements

A survey that was commissioned a number of years ago found that 57 percent of divorces stem from arguments over money – not sex, not children, not in-laws, but money! Professionals have long recognized the need to talk to young couples about financial matters as part of their premarital counseling. Yet, some lawyers think a discussion of these issues will harm, not help, the marriage. We probably should be suggesting that our clients look at their spouse’s credit report before marriage, so they won’t have to complain about how the the bills are paid after the marriage. I believe that a prenuptial agreement accomplishes two purposes. First, it is a platform for discussion of financial issues prior to a marriage. Secondly, and more importantly, it is a vehicle that resolves thorny financial issues at a time when the parties are respectful and loving toward each other rather than angry and disturbed. Theoretically, the parties will be fairer to one another when the marriage begins rather than later when the relationship is irretrievably broken. Despite that reasoning, there are still those who believe a prenuptial agreement is an unromantic document that smacks of selfishness and self-preservation. Of course, it is only selfish if the prenuptial agreement is unfair.

There are many ways to make certain that the prenuptial agreement is fair. Despite the pessimism of some, prenuptial agreements have become increasingly popular. In theory, a prenuptial agreement allows a couple to resolve the issues that could arise in the event the marriage fails and a divorce becomes necessary. If properly executed, a prenuptial agreement may help avoid protracted litigation should a divorce ever become necessary, potentially saving couples thousands of dollars in legal fees. There are a number of issues to consider in preparing a prenuptial agreement, but the most frequently addressed are as follows:

Alimony – How much money should one party pay the other for support when the marriage is over?

Equitable division of property – A prenuptial agreement can clearly spell out what property will be considered marital or joint property and what property would be considered non-marital or separate property.

Assets acquired after marriage – How should property acquired during the marriage be split, i.e., if a new house is purchased or for that matter, any property purchased during the marriage, how will the property be divided, who receives the appreciation on the asset?

Custody and child support – The most difficult issue to deal with in a prenuptial agreement is the one dealing with custody and support of children. The reason for this is because all issues surrounding the welfare of children are subject to the scrutiny of the trial court and subject to modification upon showing a material change of circumstances. Therefore, it is difficult to make certain provisions dealing with these topics enforceable in a prenuptial agreement.

In conclusion, it is clear that prenuptial agreements are now becoming much more accepted. Recent cases have indicated that the Supreme Court of Georgia has seen a dramatic shift in public policy from one that a number of years ago looked at these agreements with skepticism to one that now favors the enforcement of prenuptial agreements.
– attorney steven labovitz