Georgia: D
Statutes
2024 CODE OF GEORGIA: MARRIAGE CONTRACTS (§§ 19-3-60 — 19-3-68)
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names are split 50/50 as marital property.
Unconscionability at Execution AND Enforcement
Courts apply a three-part test at enforcement: (1) Was execution voluntary without fraud/duress/nondisclosure? (2) Was it unconscionable at signing? (3) Have circumstances changed making enforcement unfair now?
Unconscionability Standard - Low Threshold to Reject Prenup
A prenup fails if unconscionable at execution OR if circumstances changed making enforcement “unfair”.
Spousal Support
Courts can override alimony waivers if they would leave a spouse on public assistance (disability or left work to stay home).
Timing
No statutory deadline exists, but we recommend signing 60+ days before the wedding with 2-3 weeks review time to reduce challenge risk. Reach out to an attorney 4-6 months before the wedding with your PerfectPrenup draft.
Independent Counsel
Georgia requires each party have the "time and opportunity" to speak with an attorney. Having an attorney is not a requirement, but dramatically strengthens enforceability.
Financial Disclosure
"Fair and reasonable disclosure" of property and financial obligations required. Nondisclosure of material facts (including income, assets, debts) renders agreements unenforceable.
Low Burden to Challenge
Challenging party can assert: (1) involuntary execution/fraud/duress/coercion, (2) nondisclosure of material facts, (3) unconscionability at execution, OR (4) changed circumstances making enforcement unfair.
Party seeking enforcement bears burden of proving all three Scherer elements. This makes Georgia very weak for prenuptial agreements - the burden of proof is on the person seeking to enforce the prenup, not the person trying to break it, and changed circumstances rendering it “unfair” is enough for its modification.
Child Support
Child support and custody clauses are unenforceable and could undermine the entire agreement. Do not include.
Case Law
Georgia courts uphold separate property clauses, avoiding large divorce payouts. However, alimony or spousal support are easily rejected by the court if deemed “unfair” at enforcement (divorce).
Arlotta v. Arlotta, Georgia Court of Appeals (2024)
Court reversed trial court's denial of prenup enforcement, holding that prenups can waive statutory benefits (like equitable division of separate property) so long as the Scherer test is satisfied, and provisions contradicting Georgia statutory law do not render agreements unenforceable as against public policy.
Fox v. Fox, 291 Ga. 492, 731 S.E.2d 676 (2012)
Self-drafted prenup without attorney supervision failed because it lacked two witnesses and the provision didn't mention "alimony" (instead referenced "compensation for hardship"), rendering it void under Georgia law.
Newman v. Newman, 291 Ga. 635, 732 S.E.2d 77 (2012)
Prenup enforced despite handwritten provision acknowledging "ambiguities" and intent to "clarify and re-write within 30 days," because the language demonstrated the parties reached a complete agreement on property disposition in the event of divorce.
Sides v. Sides, 290 Ga. 68, 717 S.E.2d 472 (2011)
Court confirmed that the party seeking to enforce a prenup bears the burden of proving all three Scherer prongs, and the court may enforce the agreement in whole or in part.
Dove v. Dove, 285 Ga. 647, 680 S.E.2d 839 (2009)
Landmark ruling that prenups addressing alimony/divorce are NOT "marriage contracts in contemplation of marriage" under O.C.G.A. § 19-3-63, so the two-witness requirement applies only to property-at-death agreements, not divorce-focused prenups.
Lawrence v. Lawrence, 289 Ga. 309, 687 S.E.2d 421 (2009)
Prenup entered 10 days before wedding with full financial disclosure was enforced, establishing that agreements are "ordinarily enforced" when parties' intent is clear on all material terms and there is full financial disclosure.
Blige v. Blige, 283 Ga. 65, 656 S.E.2d 822 (2008)
Prenup found unenforceable because husband hid $150,000 in cash he planned to use for building a house, demonstrating that nondisclosure of material facts invalidates agreements even when parties didn't cohabitate before marriage.
Mallen v. Mallen, 279 Ga. 116, 610 S.E.2d 48 (2005)
Prenup enforced despite husband's net worth increasing $14 million during marriage, holding that the key question is whether the change was foreseeable at execution, and financial statements showing income-producing assets are sufficient even without precise income data when spouse had general knowledge from cohabitation.