Many couples are advised to sign premarital agreements (in Georgia, these agreements are called “antenuptial agreements”) to resolve disagreements should the couple decide to end their marriage. Despite the wisdom of this advice, many divorcing spouses discover that the prenuptial agreement is not working out as assumed. Perhaps one party is enjoying hidden assets or earning a much larger income than was previously revealed. Individuals who find themselves in this situation often wonder if the terms of the prenuptial agreement can be set aside.
The formal requirements of an enforceable antenuptial agreement
To be enforceable in a Georgia court, an antenuptial agreement must be in writing and signed by both parties before the marriage. Virtually all antenuptial agreements drafted by competent attorneys will satisfy these requirements.
Invalidating an antenuptial agreement
To set aside an antenuptial agreement, the party challenging its terms must prove one of three factors occurred in the negotiation and drafting of the agreement: The agreement was obtained through fraud, duress, mistake or misrepresentation or nondisclosure of material facts; the agreement was unfair and unconscionable; or the agreement has become unfair or unreasonable due to changed circumstances that occurred after the marriage.
Proving any one of these factors can be very difficult. The evidence may be difficult to obtain and will certainly be challenged by the other party. Generally, breaking an antenuptial agreement involves proving improper or exploitative actions by the other party.
Anyone considering the possibility of breaking free from an oppressive or unfair antenuptial agreement, or attempting to enforce such an agreement against a non-cooperative former spouse, may wish to consult an experienced divorce attorney for an evaluation of the evidence and an opinion on the likelihood of success.