6 Common Misconceptions About Pre & Post-Marital Agreements

The notion of a pre- or post-marital agreement can leave a bad taste in your mouth when you’re engaged, in love, and enthusiastic about the future. Many people view marriage as all about romance and a lifetime of happiness, and some couples see these agreements as suggestions that their relationship might not last ‘until death do us part.’

On the contrary. Just as businesses create contracts to clarify the details of their relationships, a couple can genuinely benefit from an agreement that establishes a strong foundation for their long-term partnership. A marriage involves children, high-value assets, and other features that will benefit from a carefully crafted plan.

Below is a list of five common misconceptions about pre- or post-marital agreements, the assumptions that create them, and the truth in each instance.

They Are Essentially Divorce Contracts

While it is true that these agreements address alimony, division of property, and other issues that arise after a marriage breaks down, they also clarify matters that may arise throughout the marriage, such as how you will buy and sell property or maintain your finances as a couple, thereby preventing future arguments. Additionally, they provide couples an opportunity to define the assets and debts which they are each bringing into the marriage to avoid future discord over marital versus separate property.

They Are Only For the Rich

These days, pre-nups and celebrity divorces make joint headlines, creating the impression that such agreements are only for people rich enough to own a private island. Pre- or post-marital agreements are not all about money, though. While they can -and should- address your financial situation as a couple, they also enable you and your fiancé/ée to reach an accord on important matters before you say ‘I do.’

They Evidence a Lack of Trust

This misconception suggests that marital agreements are turf wars: “We’re doing this so that you don’t get my stuff if we break up.” The fact is that even couples who trust each other 100% are going to have differing opinions on important matters like money, child-rearing, etc. Pre- and post-marital agreements help reveal and sort out these differences in advance, so that you and your fiancé/ée are on the same page as you move forward in your relationship.

They Are Unfair to One Spouse

This misconception stems from the assumption that pre- or post-marital agreements are intended to protect the wealthier partner’s assets if the marriage breaks down. In reality, Georgia courts will not uphold an agreement that is one-sided (in other words, unfair and unconscionable) in this manner.

They Are Not Enforceable

This one was true until 1982, when premarital agreements were viewed as contrary to public policy. That changed with Scherer v. Scherer, in which the Georgia Supreme Court ruled that couples could establish their rights prior to marriage as long as the following applied:

  • The agreement was not unconscionable
  • One spouse did not agree as a result of duress, fraud, mistake, or nondisclosure / misrepresentation of facts
  • The couple’s circumstances had not changed to the extent that enforcing the agreement is unfair and unreasonable

For your pre- or post-marital agreement to be enforceable, it must be fair and all necessary disclosures must have been made beforehand. This way, there are no surprises waiting and you are even closer to your fiancé/ée because you’ve shared so much and demonstrated that you are truly invested in the marriage.

Don’t let myths and misconceptions stand in your way of planning your future as a couple. For more information about drawing up a pre- or post-marital agreement in Georgia, contact the law office of Adam Stein today.

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