Answer: The enforceability of a prenuptial agreement is going to be determined by the adequacies of the disclosures at the time it was entered; by the other party’s ability to vet the document; whether that’s time to review it or time to review it with an attorney; and how close we were to the time of the marriage at the time that the prenup was presented for signature. These are all factors that are going to play into any court’s analysis as to the enforceability of a prenuptial agreement.
Georgia courts have found that even failure to disclose small assets might invalidate a prenuptial agreement. So, if we have a client coming into our office trying to protect their large asset going into a marriage, oftentimes what we will do is encourage them to make the broadest possible disclosures going into a prenuptial agreement. I understand that some parties are reticent about this; maybe they haven’t previously discussed this, but like I said earlier prenupts are only as strong, and postnuptial agreements are only as strong, as their weakest link. And sometimes the failure to disclose even a small asset in Georgia could invalidate your whole agreement and be the basis later on to throw out the prenuptial agreement altogether.
I encourage all parties at the outset of a review of a prenuptial agreement to have their spouse or their spouse-to-be speak to an attorney, to take a look at that prenuptial agreement and if they have changes to be made, that will only strengthen the agreement. I understand the reticence of some parties to do that, but at the same time, I care more about the security of the agreement and the enforceability of the agreement than the illusion of security in an agreement. So, what I encourage parties to do is to disclose every single asset that they can think of. Sometimes that will include disclosing even jewelry, even small accounts that they don’t think are considerable in relative size to the marital estate that they are pulling together. But I would tell people to sit down, review things as thoroughly as possible. Even a small oversight might be grounds later on to invalidate a prenuptial agreement that otherwise has been vetted and is strong.