The all-inclusiveGeorgia prenup

The controlling statute & cases

What law governs prenups in Georgia?

Georgia prenuptial agreements are governed primarily by statute and a body of case law. The core statutory provisions live at GA Code § 19-3-62 through 19-3-67, which address how premarital agreements (also called "antenuptial agreements" in Georgia) are constructed and enforced. Beyond the statute, Georgia courts rely heavily on Scherer v. Scherer, 249 Ga. 635 (1982), the case that first allowed prenups to be enforced in the state, and later decisions such as Blige v. Blige, 283 Ga. 65 (2008), which restated and refined the enforceability "Scherer" test (the proponent must prove the prenup was free of fraud, duress, or nondisclosure, is not unconscionable, and remains fair and reasonable to enforce given current circumstances). Together, these authorities explain what a valid Georgia prenup must contain, how courts weigh voluntariness and disclosure, and when an agreement can be thrown out as unconscionable.

Is Georgia a UPAA state?

No, Georgia has not adopted the Uniform Premarital Agreement Act (UPAA). Unlike roughly half the country, Georgia builds its prenup law from its own statutes and homegrown case law rather than the uniform act. The Georgia Supreme Court has been explicit on this point, noting that the state's attestation requirement for marriage contracts is a product of Georgia's own statutory history and "obviously distinguishes this state's law from the uniform act, which has never been adopted in this state." (Dove v. Dove, 285 Ga. 647 (2009)). Practically, this means couples and attorneys can't assume that rules borrowed from a UPAA state will automatically apply in Georgia; the analysis runs through the laws laid out in Scherer and its progeny instead.

Requirements for a Georgia prenup

Requirements for a valid Georgia prenup Randy Kessler, Esq. Georgia Attorney

What are the requirements for a prenup in Georgia?

A Georgia premarital agreement must be in writing and signed by both parties, and also attested to by two witnesses (GA Code § 19-3-62). Beyond these formalities, enforceability of an agreement in Georgia turns on the three-part test from a 1980s case (Scherer v. Scherer, 249 Ga. 635 (1982)). The agreement must not have been obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of a material fact, its terms must not have been unconscionable when signed, and the facts and circumstances must not have changed so drastically since signing that enforcing it now would be unfair or unreasonable.

Georgia also has no statute requiring independent counsel for either party, even where alimony is waived, though a lack of counsel can weigh into the voluntariness analysis under Scherer.

Requirements:

• In writing
• Signed by both parties
• Witnessed (attested by two witnesses)
• Full financial disclosure
• Entered into voluntarily (free of fraud, duress, misrepresentation, or nondisclosure)
• Not unconscionable when signed
• No drastic change in circumstances making enforcement unfair

Does a prenup need to be notarized in Georgia?

Notarization itself isn't the sticking point in Georgia; attestation is. Georgia's general marriage-contract statute, GA Code § 19-3-63, calls for a written marriage contract to be attested by at least two witnesses. However, it is still often best practice to have a Georgia prenup witnessed by two witnesses and notarized in front of a Notary Public for an added layer of protection that is relatively easy to obtain. Notarization requires identity confirmation, so it makes it harder to argue that either party didn't actually sign the agreement years later.

Do both parties need a lawyer for a prenup in Georgia?

Not necessarily. Georgia has no statute requiring either party to hire independent counsel before signing a premarital agreement. That said, whether a party had a genuine opportunity to consult a lawyer is one of the practical realities courts weigh when analyzing whether the agreement was voluntarily entered into. An agreement is far more likely to survive a challenge if each side had a fair chance to seek counsel and simply chose not to, than if one side was rushed to sign without any opportunity for advice.

What makes a prenup invalid in Georgia?

A Georgia prenup can be invalidated if it fails any prong of the Scherer test: if it was procured through fraud, duress, mistake, misrepresentation, or nondisclosure of a material fact; if its terms were unconscionable at the time of signing; or if circumstances have changed so significantly since execution that enforcing it now would be unfair and unreasonable (Scherer v. Scherer, 249 Ga. 635 (1982)). An agreement can also fail for more basic reasons, such as not being in writing, lacking proper signatures, lacking witnesses when required, or including terms that violate Georgia public policy.

How long before the wedding should I sign a prenup in Georgia?

Georgia doesn't impose a statutory countdown like some other states do. Even so, attorneys in the state sometimes recommend signing 30 to 60 days before the ceremony, since a document presented the night before (or morning of) the wedding hands the challenging spouse a potential argument for duress. However, there have been prenups enforced that were signed several days before the wedding in Georgia, when considering all of the circumstances. For example, in Sides v. Sides, 290 Ga. 68 (2011), the parties executed their prenup five days before the wedding. The wife became pregnant, and the husband agreed to marry her on the condition that the parties enter into a prenup. The Supreme Court of Georgia enforced the prenup, finding that full financial disclosures were made to the wife before she signed, that the wife had known the husband for many years and was aware of the vast disparity between their incomes, and that the wife failed to establish that an increase in the husband's net worth over time constituted a change in circumstances making enforcement unfair or unreasonable.

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What can & can't be in a Georgia prenup

What can and can't be in a Georgia prenup Randy Kessler, Esq. Georgia Attorney

Does cheating void a prenup in Georgia?

Not automatically, and the analysis may look a bit different in Georgia than in no-fault-only states. Georgia still recognizes fault-based grounds for divorce, including adultery, under GA Code § 19-5-3, and separately bars a spouse from receiving alimony where a preponderance of the evidence shows that spouse's adultery or desertion caused the separation (GA Code § 19-6-1(b)). So infidelity already carries a built-in legal consequence in Georgia divorces, independent of anything written into a prenup.

Are infidelity clauses enforceable in Georgia?

According to celebrity Georgia divorce attorney Randall Kessler, "Infidelity clauses are rarely brought to court, given the risk that a judge may find it offensive. And there is also the potential that it could be found unenforceable as payment related to sex. But the real benefit is that it motivates people to avoid court and the potential not only of a financial penalty, but of the publicity surrounding it."

Georgia courts haven't issued a definitive appellate ruling squarely on point the way some states have. Because Georgia already permits fault, including adultery, to affect alimony outcomes under GA Code § 19-6-1(b), an infidelity-related clause isn't fighting the same uphill battle it would face in a state built entirely around no-fault divorce. Even so, any such provision would still be tested against the ordinary Scherer framework for voluntariness, disclosure, and unconscionability, and a clause that reads more like a financial punishment than a fair allocation of property or support could still draw a court's scrutiny.

Can a prenup include child custody in Georgia?

No. Georgia law requires custody to be decided based on the child's best interests at the time of the custody proceeding, not based on terms two people agreed to years earlier before the child even existed (GA Code § 19-9-3). Parents cannot contract away a child's right to have custody determined through a prenup, and any custody or visitation terms tucked into a prenup will simply be disregarded, whether or not the rest of the agreement survives.

Can a prenup protect a business in Georgia?

Yes. Georgia's premarital agreement statute allows parties to contract with respect to the property of either or both of them, and business interests fall squarely within that scope. In fact, protection of businesses is one of the most common reasons for a prenuptial agreement. Business protection via a prenup may include protection of existing assets, future growth, income, and debt protection for the other spouse. Spelling this out clearly in the agreement helps prevent a dispute later that marital effort or funds transformed the business into property subject to Georgia's equitable distribution rules.

Can a prenup protect inheritance in Georgia?

Yes, prenuptial agreements in Georgia are often used to clarify ownership of future inheritances. Under O.C.G.A. § 19-3-9, property one spouse receives by gift, inheritance, bequest, or devise is treated as that spouse's separate property by default, even if received during the marriage. But default rules can erode in practice if an inheritance gets deposited into a joint account, used to improve marital property, or otherwise commingled with marital funds. A prenup is a useful tool precisely because it lets a couple spell out, in writing, that inherited or gifted assets are meant to stay separate and protected from commingling, rather than relying on the default statute to sort it out after the fact.

Marital property in Georgia

Is Georgia a community property state?

No. Georgia is one of the 41 states that follow equitable distribution rather than community property (O.C.G.A. § 19-5-13). That means marital property isn't automatically split 50/50 in a divorce; instead, a judge or jury divides it in whatever proportion the fact-finder decides is fair given the full picture of the marriage. Georgia courts have repeatedly confirmed that "an equitable division of property does not necessarily mean an equal division." (Mathis v. Mathis, 281 Ga. 865 (2007)). This stands in contrast to community property states, where property acquired during the marriage is generally divided equally regardless of whose name is on the title.

How is property divided in a divorce in Georgia without a prenup?

Under O.C.G.A. § 19-5-13 and the framework set out in Stokes v. Stokes, 246 Ga. 765 (1980), Georgia courts divide marital property according to what's equitable, not according to a fixed formula. Courts weigh factors such as each spouse's financial contributions, the purpose behind how property was acquired, each spouse's separate estate, and the duration of the marriage. Separate property, meaning what a spouse brought into the marriage or received individually by gift or inheritance, generally stays out of the pot. So, for example, if a couple used income earned during the marriage to buy a home, that home would typically be treated as marital property subject to equitable division, even if only one spouse's name is on the deed, while a brokerage account either spouse held before the wedding would usually remain separate.

Does a prenup override equitable distribution in Georgia?

Yes, a valid and enforceable prenup can supersede Georgia's default equitable distribution rules. O.C.G.A. § 19-3-62 recognizes a couple's right to contract around how their property will be divided if the marriage ends, meaning the parties can specify exactly what stays separate and what, if anything, becomes shared property. As with any prenup, whether it actually overrides the default rules comes down to careful drafting and whether the agreement holds up under the Scherer enforceability test.

What is separate property in Georgia?

Separate property in Georgia is defined at O.C.G.A. § 19-3-9, which identifies it as property acquired by either spouse before the marriage, along with anything received during the marriage by gift, inheritance, bequest, or devise. In plain terms, whatever you owned going into the marriage, plus anything given or left to you individually at any point, is treated as your separate property and generally isn't up for division in a Georgia divorce, unless it's been commingled with marital assets along the way.

Spousal support in Georgia

How spousal support works in Georgia Randy Kessler, Esq. Georgia Attorney

Can a prenup waive spousal support in Georgia?

Yes, a Georgia premarital agreement can waive or limit alimony. Unlike some states, Georgia does not have a statute requiring independent counsel before a party can validly waive spousal support; the waiver simply has to survive the same Scherer analysis that applies to the rest of the agreement. Courts examining an alimony waiver will look at whether it was entered into voluntarily, whether both sides had a fair shot at understanding what they were giving up, and whether the waiver was unconscionable when signed or has become unfair given how circumstances have since changed (Scherer v. Scherer, 249 Ga. 635 (1982); Blige v. Blige, 283 Ga. 65 (2008)).

Does a prenup prevent spousal support in Georgia?

It can, if that's how the agreement is drafted. Georgia gives couples wide latitude to write their own rules about alimony, including waiving it entirely, limiting its amount or duration, or setting specific terms in advance. To hold up, the waiver still has to clear the same enforceability hurdles as any other provision of the agreement: voluntary execution, no material nondisclosure, and terms that aren't unconscionable or grossly unfair by the time a court is asked to enforce them.

How is alimony determined in Georgia without a prenup?

Absent a valid agreement, Georgia judges decide alimony under O.C.G.A. § 19-6-5, which lists eight factors for setting the amount and duration of support. There's no fixed formula; the court weighs the totality of the circumstances. Some of the factors judges consider:

• Standard of living established during the marriage
• Length of the marriage
• Age and physical and emotional condition of both spouses
• Financial resources of each party
• Time needed for either party to acquire education or training to find suitable employment
• Contribution of each party to the marriage, including homemaking and helping build the other spouse's career
• Each spouse's condition, including earning capacity and debts
• Any other factor the court deems equitable and proper

One important wrinkle that doesn't exist in every state: under O.C.G.A. § 19-6-1(b), a spouse is barred outright from receiving alimony if it's shown by a preponderance of the evidence that the separation was caused by that spouse's own adultery or desertion. That fault-based bar has to be cleared before a court ever gets to the eight-factor analysis above.

How much does a prenup cost in Georgia?

How much does a prenup cost in Georgia?

According to Georgia prenup attorney Randall Kessler, "In Georgia, the average prenup costs between $5,000 and $10,000, or much more if it is complicated or heavily negotiated. We have had prenups cost over $100,000."

As you can see, prenup costs in Georgia vary widely. The variance can depend on prenup complexity, the amount of negotiation, and the complexity of the finances. Straightforward agreements, think modest assets and no business interests, often run a lower cost, compared to, say, a celebrity with several businesses and complex negotiations.

What is the cheapest way to get a prenup in Georgia?

Generally, the most cost-effective path in Georgia is to combine an online prenup platform with a flat-fee attorney review. HelloPrenup offers this hybrid model, which gives you the best of both worlds: affordability with an attorney-reviewed prenuptial agreement. This hybrid model allows a couple to generate a first draft through a guided questionnaire and then have a Georgia-licensed attorney review and explain the document, rather than paying an attorney to draft the entire agreement from a blank page. HelloPrenup also allows couples to connect directly with Georgia-licensed attorneys through the platform for that review step.

How much does a prenup lawyer cost in Georgia?

Attorney fees for Georgia prenups are typically billed hourly, and rates vary by the attorney's location and experience, with Atlanta-area rates generally running higher than in smaller Georgia markets. The total bill depends heavily on how much back-and-forth the negotiation requires; a couple with straightforward finances and quick agreement on terms will usually spend far less attorney time than a couple negotiating complex business or alimony provisions.

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How to get a prenup in Georgia

How do I get a prenup in Georgia?

There are generally two paths: (1) each partner hires their own attorney, with one drafting the agreement and the other reviewing and negotiating it, or (2) the couple uses a reputable online prenup platform and adds an attorney review on top. Going the traditional two-attorney route means finding your own local counsel to draft the document while your partner retains separate counsel to review it. The online platform route lets a couple complete a guided questionnaire to generate a draft agreement first, with attorneys stepping in afterward to review, explain, and suggest changes, which typically saves both time and money compared to drafting from scratch.

Can I write my own prenup in Georgia?

Generally, yes. Georgia has no statute requiring either party to hire an attorney before signing a premarital agreement, even where alimony is being waived. That said, the agreement still has to be in writing and properly executed, and Georgia's general marriage-contract statute calls for attestation by two witnesses (O.C.G.A. § 19-3-63), so the execution formalities matter even if legal representation doesn't. Given how much rides on the agreement holding up years later, most family law attorneys still recommend at least one side get independent review before signing.

How long does it take to get a prenup in Georgia?

Timing depends mostly on how organized both parties are and how quickly any attorneys involved can turn the work around. Financial disclosure is usually the biggest time sink, since each party needs to gather account statements, deeds, business records, and other documentation to satisfy Georgia's full-disclosure expectations under Scherer. A simple, uncontested agreement between two organized parties can sometimes come together in a couple of weeks, while a more complex agreement, or one where an attorney has a heavy caseload, can stretch into a couple of months.

Do I need a lawyer to get a prenup in Georgia?

No, Georgia law does not require either party to retain a lawyer to sign a valid premarital agreement. What matters more is that the agreement is properly written, signed, and attested (by two witnesses), and that both sides had a genuine opportunity to review the terms and, if they wanted, seek legal advice before signing. Whether a party had that opportunity can become relevant later if the agreement is ever challenged and the party is arguing they didn't voluntarily enter into the agreement.

Caselaw & enforceability

Are prenups enforceable in Georgia?

Yes, prenuptial agreements have been enforceable in Georgia since the Georgia Supreme Court decided Scherer v. Scherer, 249 Ga. 635 (1982), overturning the older rule that treated such agreements as contrary to public policy. To be enforced, an agreement has to clear the three-part Scherer test: (1) no fraud, duress, mistake, misrepresentation, or nondisclosure at signing; (2) no unconscionability at signing; and (3) no such drastic change in circumstances since signing that enforcement would now be unfair.

How hard is it to break a prenup in Georgia?

It's difficult, though not impossible. The spouse trying to "break" the agreement bears the burden of showing that it fails one of the three Scherer prongs, whether that's fraud or nondisclosure at signing, unconscionability at signing, or a change in circumstances so severe that enforcing the agreement now would be unreasonable. Georgia courts tend to enforce prenups absent clear proof on one of these fronts, so a party looking to challenge an agreement generally needs solid, specific evidence rather than a general sense that the outcome feels unfair.

Can a judge throw out a prenup in Georgia?

Yes, but only for a valid legal ground, the same way any other type of contract can be set aside. A Georgia judge can decline to enforce a prenup, or a specific clause within it, if the challenging spouse proves fraud, duress, mistake, misrepresentation, or nondisclosure of financials at signing; unconscionability at signing; or a material change in circumstances since execution (Scherer v. Scherer, 249 Ga. 635 (1982)).

For example, a judge threw out a Georgia prenup in Blige v. Blige, 283 Ga. 65 (2008), where the Supreme Court of Georgia set aside a prenup based on the first prong of the Scherer test, which requires showing both full disclosure of assets beforehand and that the other party signed freely and knowingly, with a chance to consult a lawyer.

What can void a prenup in Georgia?

There's a limited set of ways a Georgia prenup can be voided. Below are the various ways a prenup can be thrown out:

• Not in writing or missing proper signatures
• Lack of witnesses where required
• Fraud, duress, mistake, or misrepresentation at signing
• Nondisclosure of a material financial fact
• Unconscionable terms at the time of signing
• A drastic change in circumstances since signing that makes enforcement unfair or unreasonable now
• Provisions that violate Georgia public policy, such as predetermined child custody terms or clauses that incentivize divorce

Apart from those exceptions, Georgia courts rarely invalidate a prenuptial agreement.

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Duration & after-marriage

How long does a prenup last in Georgia?

A valid Georgia prenup remains in force indefinitely unless the couple builds in an end date. Some couples include what's sometimes called a sunset provision, timing the agreement's expiration to a specific wedding anniversary, on the theory that after enough years together, their finances and lives have become intertwined enough that the original terms no longer make sense. Absent such a "sunset" or expiration clause, the agreement continues to govern the marriage for as long as the marriage lasts.

Can you get a prenup after marriage in Georgia?

No, a premarital agreement by definition has to be signed before the wedding. Once a couple is already married, the relevant tool is a postnuptial agreement, which Georgia recognizes under GA Code § 19-3-66. Courts apply the same Scherer enforceability test to postnuptial agreements that they apply to prenups, but postnups tend to face closer scrutiny in practice, since married spouses already owe each other a fiduciary duty that doesn't exist between engaged partners who are still free to walk away before the wedding (Spurlin v. Spurlin, 289 Ga. 818 (2011)).

Can you change a prenup in Georgia?

Yes, a Georgia prenup can be amended after the fact, as long as the amendment is in writing and signed by both parties and meets the same basic formalities required of the original agreement, such as two witnesses. Because an amendment is itself a contract between spouses, courts will apply the same voluntariness, disclosure, and unconscionability analysis under Scherer to the amendment that they'd apply to the original document, so it's worth treating any changes with the same care as the initial agreement.

Cross-border & recognition

Which state law governs your prenup Randy Kessler, Esq. Georgia Attorney

Is a prenup signed in another state valid in Georgia?

Georgia's premarital agreement statute allows couples to include choice-of-law provisions specifying that another state's law will govern how the agreement is interpreted. As with any choice-of-law clause, the chosen state generally needs some real connection to the parties, rather than being picked purely for favorable terms, and a Georgia court can still decline to apply the chosen state's law where doing so would conflict with Georgia public policy.

What happens to my Georgia prenup if I move to another state?

This depends heavily on how the new state treats choice-of-law provisions. In one illustrative example, a Florida appellate court enforced a prenuptial agreement's choice-of-law clause selecting Georgia law, finding that doing so didn't violate Florida public policy, even though the agreement didn't provide equally for both spouses (McNamara v. McNamara, 988 So. 2d 6 (Fla. 5th DCA 2008)). That outcome isn't guaranteed everywhere; other states have sometimes limited how far they'll go in applying an out-of-state choice-of-law clause.

The takeaway for Georgia couples is similar to the takeaway in most states: a Georgia choice-of-law clause makes it more likely that Georgia law will govern the agreement if you later move and divorce elsewhere, but it isn't an ironclad guarantee, and it's worth having the agreement reviewed by counsel in your new state if you relocate.