A Georgia judge asked to enforce a prenuptial agreement decides the question using a three-part test.
Where the Test Comes From
The test comes from Scherer v. Scherer, 249 Ga. 635 (1982), the same decision that made prenuptial agreements enforceable in Georgia. Rather than treat a signed agreement as automatically binding, the Georgia Supreme Court held “that when a superior court in this State is presented with an antenuptial agreement in a divorce proceeding, the foregoing criteria should be employed in determining whether to enforce the agreement.”
The Three Criteria
Under Scherer, the trial judge asks: (1) “was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?” (2) “is the agreement unconscionable?” and (3) “[h]ave the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?”
Notice what the second and third questions do. An agreement can be perfectly honest when it was signed and still fail, either because its terms were unconscionable or because life has since changed enough to make enforcing it unfair.
One Failed Criterion Is Enough
A challenge that succeeds on any single criterion ends the matter. In Corbett v. Corbett, 280 Ga. 369 (2006), the trial court refused to enforce an antenuptial agreement because the husband had not disclosed his income, and the case was then tried to a jury without the agreement ever being mentioned. On appeal, the Georgia Supreme Court found no abuse of discretion and said it “need not consider” whether the agreement was also unconscionable or whether the circumstances had changed.
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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!