A postnuptial agreement – one signed after the wedding, while the marriage is still intact – is enforceable in Georgia.
Georgia Once Drew a “Fine Line”
Georgia courts used to distinguish between an agreement made incident to a divorce, which was valid, and one whose object was to promote the dissolution of the marriage, which was void. That line proved impossible to draw, and in Sanders v. Colwell, 248 Ga. 376 (1981), the Georgia Supreme Court abandoned it, declaring “that agreements in contemplation of divorce settling issues of alimony, property division … are not invalid.”
A Judge Reviews It Like a Prenuptial Agreement
A postnuptial agreement is not self-executing. In Murray v. Murray, 299 Ga. 703 (2016), the Georgia Supreme Court applied the same three criteria used for prenuptial agreements and confirmed that in deciding whether to enforce one, the trial court “essentially sits in equity and has discretion to approve the agreement in whole or in part, or refuse to approve it as a whole.”
Murray also shows how such an agreement fails. After about 34 years of marriage, a wife hoping to save it signed a postnuptial agreement, drawn up by her husband’s attorney, that favored him. She signed because he promised to tear it up as soon as she did. When he instead moved to enforce it during the divorce, the trial court found the agreement unenforceable, and the Georgia Supreme Court affirmed, holding that the evidence, “though slight, is sufficient to establish the existence of fraud.”
So the fact that you signed something during your marriage does not settle what happens in your divorce.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!