Planning a wedding and marriage may be time-consuming and stressful. Negotiating a contract with your soon-to-be spouse for the possibility that you may terminate your marriage or die seems unromantic and unnecessary. But there may be valid reasons to enter prenuptial agreements.
Many individuals enter marriage with a business, brokerage account or retirement account. A prenuptial agreement allows spouses to determine how this property will be divided and other issues if there is ever a divorce. Otherwise, spouses lose control over these matters and a judge, acting under Georgia law, will decide on the disposition of property and other matters.
Couples must be transparent about their finances when negotiating these contracts. There should be a process for establishing a marital estate.
Agreements must be fair and reasonable, or they may be invalidated. A party cannot sign the document under duress. These should be prepared months before the marriage, so it is not signed under the pressure of an impending wedding.
Protecting premarital property
Property owned by a spouse before they marry is premarital property, which is usually not part of divorce property division. But certain premarital property, such as a business or brokerage account, may appreciate during the marriage. This increase in value may be marital property that could be divided.
Likewise, any earnings occurring in the marriage and purchases with those earnings is marital property. Placing marital earnings in a premarital account may transform premarital property into marital property.
Couples can exclude premarital property appreciation from the marital estate through a prenuptial agreement. That agreement may also change earning classifications occurring during the marriage, protect earnings and safeguard commingled funds in premarital accounts.
Retirement account funds bought during the marriage and their passive appreciation will not become marital assets. However, funds from earnings that are deposited into a retirement account and their appreciation become marital assets.
If a spouse dies, their surviving spouse has a claim to their retirement unless that spouse signed a waiver of claims to retirement accounts.
A premarital agreement may protect these and other retirement accounts.
Inheritances remain separate if they stay in a spouse’s name and marital assets are not spent on those assets. But the increased value of inherited stock in a business, however, may become a marital asset unless it is protected by a prenup.
Prenuptial agreements can cover the payment, length and amount of spousal support. There may also be a waiver of this support, but couples can agree to limited payments or assets to pay for support.
Attorneys can assist with drafting an agreement that meets the couple’s needs. They can also help ensure that it meets Georgia requirements.