There are many reasons why a couple would choose to enter a post-nuptial agreement over a pre-nuptial agreement. In some cases, couples deem it more appropriate to deal with such topics post-wedding or after they have established a family life. In other cases, a change in circumstances leads to the desire to draft an agreement.
Whether a post-nuptial agreement is being drafted after the ceremony or many years into the marriage, there can be circumstances during the marriage that make it desirable or necessary to create a specific agreement specifying the division of property or assets will occur.
Certain events such as an inheritance may trigger the need or desire to come up with a written agreement while the couple is happily married, rather than quibble over it when tensions are high and there are a myriad of other issues related to the split.
As with the pre-nuptial agreement, the couple must clearly put everything in writing and have at least two witnesses to the contract. While Georgia courts recognize post-nuptial agreements, they will investigate three areas of consideration before fully enforcing them:
- Was there fraud, duress, mistake, misinterpretation, or non-disclosure employed in the process of obtaining the agreement of the other spouse?
- Is the agreement so unfair so as to be considered unreasonable?
- Have the circumstances changed since the agreement was executed so that the enforcement of it would be unfair and unconscionable?
If the answer to all of the questions above is no, then the court will likely enforce the agreement wholly.
A post-nuptial agreement can also be of use in the event of death of one of the spouses. It will dictate the division of property and assets in this case, thus greatly simplifying the probate process and/or effectively eliminating will contests.
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