Are prenuptial agreements enforceable in Georgia?

Georgia uses a court-discretionary, equity-driven framework derived from Scherer v. Scherer.

1. Governing Statute / Common Law

No UPAA in Georgia. Authority comes from Scherer v. Scherer, 249 Ga. 635 (1982), with statutory backdrop at O.C.G.A. § 19-3-62 et seq. (marriage contracts) and § 19-3-63 (writing requirement).

2. Formality Requirements

The agreement must be in writing and signed by both parties and must be attested by two witnesses (O.C.G.A. § 19-3-63). Recording in the county of residence (within three months of marriage) is required to bind third parties.

3. Voluntariness

Scherer prong one asks whether the agreement was obtained through fraud, duress, mistake, misrepresentation, or nondisclosure of material facts. Time pressure, lack of counsel, and English-language proficiency are weighed in the totality.

4. Disclosure

Full and fair disclosure of assets and income is a critical Scherer factor. The Georgia Supreme Court has invalidated agreements where a spouse failed to disclose substantial business interests (see Mallen v. Mallen, 280 Ga. 43 (2005), where disclosure was held adequate, and Blige v. Blige, 283 Ga. 65 (2008), reaffirming the disclosure prong).

5. Unconscionability

Scherer prong two prohibits enforcement of unconscionable agreements. Scherer prong three uniquely allows the trial court to refuse enforcement if the facts and circumstances have changed since execution so as to make enforcement unfair and unreasonable. This forward-looking review distinguishes Georgia.

6. What Cannot Be Waived

Child support and custody cannot be predetermined. Alimony and equitable division may be waived, subject to Scherer's three-part review.

7. Key Georgia Case Law

Scherer v. Scherer (1982); Mallen v. Mallen (2005); Blige v. Blige (2008); Alexander v. Alexander, 279 Ga. 116 (2005).

This is legal information, not legal advice.