Georgia Prenuptial Agreement

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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). 

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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What is a prenuptial agreement?

A legal contract signed before marriage that determines how assets, debts, and finances are handled if the marriage ends. We recommend assets and debts are kept separate, unless held jointly, where they are split 50/50. Alimony is modified to incentivize larger familes and longer marriages, rather than divorce. A privacy clause allows the growth of an intimate, trusting relationship. A dispute resolution clause can move things out of an expensive courtroom and into mediation or arbitration, lowering conflict to maintain a workable relationship.

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How much does a prenup cost in Georgia?

Attorney-drafted from scratch: $1,500–$5,000+ per side. The smarter approach: start with our free Georgia template, draft any changes with an AI like Claude, then hire an attorney only to review and assist with signing. The bill should be around $500 per side.

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Are prenups enforceable in Georgia?

Yes, but Georgia earns a D rating — one of the weakest enforcement states in the country. Georgia has not adopted the Uniform Premarital Agreement Act, and its courts apply the Scherer v. Scherer (1982) three-part test at enforcement. Uniquely, the burden of proof falls on the party seeking to enforce the prenup — not the challenger. A court can refuse enforcement if circumstances changed during the marriage in ways that make enforcement unfair, even if the agreement was perfectly valid at signing. A prenup is still far better than no prenup.

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What makes a prenup invalid in Georgia?

Under the Scherer test, the enforcing party must prove all three: (1) the agreement was not obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of material facts (including income — Blige voided a prenup where the husband hid $150,000 in cash); (2) the agreement is not unconscionable; and (3) circumstances have not changed to make enforcement unfair or unreasonable. Courts require extreme changes to trigger prong three — a spouse becoming permanently disabled and unable to earn income qualifies; a dramatic increase in one party's wealth alone generally does not (Mallen). Also fatal: only one witness at signing (Sullivan, Fox) and failure to identify asset values, not just list them.

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Do I need a lawyer to get a prenup in Georgia?

Not technically — Georgia requires each party have the "time and opportunity" to consult an attorney, not that they actually retain one. In practice, both sides having separate attorneys is by far the strongest protection, particularly because the Scherer burden falls on the enforcing party, and documented independent counsel is the clearest evidence of voluntariness and full knowledge. Use the template to cut drafting costs, but don't skip the attorney.

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What should a Georgia prenuptial agreement include?

Our Georgia template is built around six core principles:

• Separate property — assets and debts stay with the party who acquired them, minimizing conflict
• Joint assets and debts — anything both parties sign for together is split 50/50
• Marital home — ownership is tracked as a percentage of contribution, so each party gets back what they put in
• Spousal support — structured to incentivize larger families and longer marriages, not divorce
• Full financial disclosure — all assets, debts, and income over $1,000, listed in the exhibits, satisfying O.C.G.A. § 19-3-62 and the Scherer disclosure standard
• Privacy clause — keeps financial and personal details private, supporting a trusting relationship

Leave out child custody and support entirely — Georgia courts will not enforce them and they can invalidate the rest of the agreement.

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Does Georgia's property law make a prenup important?

Yes. Georgia is an equitable distribution state — without a prenup, a court divides marital property based on what it considers fair, which is not necessarily 50/50 and is highly unpredictable. Courts have broad discretion over all assets acquired during marriage. A prenup lets both parties define in advance which assets stay separate and what happens to jointly acquired property, removing that discretion from a judge and reducing the acrimony of litigation.

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How far in advance should I get a prenup in Georgia?

Sign 60+ days before the wedding. Give your spouse at least two weeks to review with their own attorney — the Scherer test requires the enforcing party to prove the agreement was free of duress, and last-minute presentation hands the challenger a strong argument. Contact an attorney 4–6 months before the wedding. Best practice: sign before proposing — no time pressure, and you'll know this is the right person to marry.

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What is the Scherer test and why does it matter?

Scherer v. Scherer, 249 Ga. 635 (1982) is the foundational Georgia Supreme Court case governing prenup enforcement. It established a three-part test that the enforcing party must satisfy at divorce: (1) no fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement was not unconscionable; and (3) changed circumstances don't make enforcement unfair or unreasonable. The reversed burden — where the person enforcing the prenup must prove its validity, not the challenger — is what makes Georgia one of the hardest states to enforce a prenup in. Clean execution, thorough disclosure, and drafting that accounts for foreseeable life changes are the best defenses against a Scherer challenge.

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