Atlanta Pre- and Post-Nuptial Agreements Attorneys
Prior to marriage you and your spouse can contract away your right to spousal support, determine child custody, and even distribution of property in the event you divorce. This is commonly known as a prenuptial agreement. Now, you have poured over the names and references given to you by your closest friends and family and checked those out on the Internet and selected the lawyer that you believe is best suited to help you through this process. Now you must begin to communicate the important details of your case to your lawyer and make some important decisions that may affect what your post-divorce life looks like. This will require many pieces of information and documents that your lawyer will need at the outset of your representation. This information and exchange of documents will occur at your initial meeting after you have hired your attorney.
It is the life’s work and goals of Kessler & Solomiany, LLC attorneys to make a difference in your journey and the challenging journeys of families facing difficult times. We are dedicated to helping each and every client feel safe and secure and move through life with courage and knowledge as they create the outcome and future they desire and deserve. You owe it to yourself and your family to be fully prepared. In our nearly twenty-five years of practicing family law, we have been involved in almost every type of case. A good family law lawyer will give you honest advice, based on your best interests. We can be that good lawyer for you. Call us at (404) 688-8810 today.
How to Find the Best Lawyer for You
A lawyer who charges high fees or has a fancy office may not necessarily be the best lawyer for you and your case. As with hiring any professional, the key is learning about the lawyer’s experience and credentials. A lawyer’s track record and reputation are critical. You will also need to look at your budget and figure out how much you can afford to spend in legal fees. The American Bar Association’s Model Rules of Professional Responsibility—which many states’ bar associations model their own rules of professional conduct upon—states in Rule 1.5(a) that a lawyer shall not charge an unreasonable fee for their services. Rule 1.5(a) lists eight factors that should be considered in determining whether a fee is “reasonable.” These factors include:
- The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer
- The fee customarily charged in the locality for similar legal services
- The amount involved and the results obtained
- The time limitations imposed by the client or by the circumstances
- The nature and length of the professional relationship with the client
- The experience, reputation, and ability of the lawyer or lawyers performing the services
- Whether the fee is fixed or contingent.
It is also important to note that Rule 1.5, Section (D) of the Model Rules of Professional Responsibility prohibits an attorney from entering into an agreement in any domestic relations matter, payment of which is contingent upon securing a divorce or upon the amount of alimony or support, or property settlement. Keep in mind that the Model Rules of Professional Responsibility are merely guidelines for your state’s bar association and often will not have been adopted as written. But to be clear, lawyers are prohibited from getting a percentage of the settlement as their fee in a divorce.
The factors mentioned above illustrate that a high-priced lawyer is not necessarily better; but generally, the best divorce lawyers charge more because their experience and results allow them to do so. However, if your case is simple and does not involve a large sum of money to fight over, a high-priced attorney may not be best for your needs. Many law firms will have associates and paralegals that can also work with you on certain aspects of your case, or can answer questions. Indeed, it is crucial that your lawyer has a support staff of paralegals, administrative assistants, and fellow attorneys that can aid them in the workload. More importantly, these professionals will charge a lower fee for their services, thereby lowering your total cost.
The most important thing is that you feel confident in your lawyer’s ability to handle your case competently. Talk to your lawyer. Get a sense that they are listening to you, and not just telling you what they tell everyone who walks in the door. Undoubtedly, it is best to have an experienced attorney; however, your attorney should look at your case with an open mind and a willingness to listen to your concerns. You are hiring a professional. As the client, you have rights and privileges. You have the right to ask questions. You have the right to understand every step that you and your attorney take in this process. You have the right to say “no” if you are not comfortable with a tactic. Make sure you are comfortable with your choice of lawyer.
What To Include in an Agreement
Generally, you may include any provisions that you and your spouse can agree upon. The caveat to this general rule comes when children are involved. When children are at issue, a provision must be in the best interest of the child. That being said, your settlement agreement may include provisions, for example, that divide your savings, debts, and property or even provisions for child support payments and child custody provided the payments and custody arrangement further the best interest of the child.
Depending on your religious beliefs or values, it is also important to outline in detail if there are any faith-related or religious-inspired actions that you want included in your proposal and agreement. Be sure you have talked with your religious or spiritual leader to be certain that you provide the supplemental language, if needed, to ensure that both parties cooperate with any religious-related procedures to effectuate a divorce within your religious beliefs. Courts are very resistant to getting involved in issues such as which religion is best for a child. Parents have a right to expose their children to their own religious beliefs, within reason, and the courts will usually respect that. In other words, whoever has legal custody of the children may decide things such as to which church does the child belong, will the child have a bar mitzvah or will a child observe Islamic, Jewish or other dietary rules. But most lawyers and judges will try to designate a parent as the final decision maker on that issue, only after each parent has consulted with the other in a good faith discussion about any such issue.
Enforcing an Agreement
Generally, to be enforceable a prenuptial agreement must be:
- Made with no duress or coercion
- Made with full financial disclosure from both parties
- Entered into knowingly by both parties
- Must not be “unconscionable.”
However, in many states, you may also enter into a contract after you are married, but before divorce. This is commonly known as a postnuptial agreement. To be enforceable, a postnuptial agreement must meet the same requirements as a prenuptial agreement. Regardless of when you enter into a prenuptial or postnuptial agreement, most jurisdictions will enforce the contract if the rules are followed. But again, please check with a lawyer in your area, as some states do not allow postnuptial agreements and the rules for prenuptial agreements do vary from state to state.
One such enforceable prenuptial or postnuptial agreement will override the division of property system in your jurisdiction. It is important to reiterate that a prenuptial or postnuptial agreement
- Must not be unconscionable
- There must be full financial disclosure between both parties
- It must be voluntary
Again, state laws vary, so you should rely on the advice of your attorney. If your prenuptial or postnuptial agreement is legally enforceable then you can stipulate your own terms for property division. For example, if you live in an equitable division of property state, your prenuptial agreement may stipulate that all marital assets will be divided equally (50/50). This effectively takes the discretion out of the hands of the judge. Conversely, if you live in a community property state, your prenuptial agreement may state that one spouse shall receive more or less than the other spouse at divorce. Again, despite the default rules in your jurisdiction to the contrary, you may agree to modify or override those rules.
Contact Kessler & Solomiany, LLC
Speak to an attorney right away! You are hiring a highly skilled professional to steer you through a major financial and personal undertaking. There is no real way to predict what will happen, how long it may take, whether you and your spouse will agree on everything, or how much money will be at stake, but your attorney can discuss all the options and variables, and give you a general ballpark estimate of the costs. Contact the Kessler & Solomiany, LLC at (404) 688-8810 to get started.
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Prenuptial Agreements FAQs
- What is a prenuptial agreement?
- Why do people get prenuptial agreements?
- What is an “antenuptial agreement” or a “premarital agreement”?
- Can I sign a prenuptial or post-nuptial agreement after I get married?
- Does everyone getting married need a Prenuptial Agreement?
- Can a Prenuptial Agreement cover alimony?
- Can a Prenuptial Agreement affect child custody or child support?
- I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
- Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
- Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
- Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
- What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
- Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
- Are Prenuptial Agreements expensive?
What is a prenuptial agreement?
A prenuptial agreement is a contract entered into by two people who are to be married. The purpose of a Prenuptial Agreement is to set forth certain rights for each party in the event of a divorce. Sometimes provisions for property distribution upon death are included, but such provisions are better placed in a Last Will and Testament.
Why do people get prenuptial agreements?
The most common reason for a Prenuptial Agreement is to protect property that one or both parties owned before the marriage from becoming divided upon divorce.
What is an “antenuptial agreement” or a “premarital agreement”?
These are all synonyms for a Prenuptial Agreement. They all refer to the same concept, the same type of document.
Can I sign a prenuptial or post-nuptial agreement after I get married?
Yes. It would be called a “Post-Nuptial Agreement” and Georgia law does currently recognize such documents.
Does everyone getting married need a Prenuptial Agreement?
Prenuptial agreements are not for everyone. Prenuptial Agreements are generally utilized by parties who have considerable assets prior to the marriage and want to keep those assets separate or those who have been through a divorce and want to minimize the cost and time if they unfortunately go through another divorce. Without a prenuptial agreement, it is possible in certain circumstances for separate or premarital property to lose its separate quality and it can then become marital property or can be used to pay alimony.
Can a Prenuptial Agreement cover alimony?
Sometimes, Prenuptial Agreements are used to limit, establish or eliminate alimony in the event of a divorce.
Can a Prenuptial Agreement affect child custody or child support?
Generally speaking, Prenuptial Agreements do not deal with child custody or child support. Judges make the final decision on custody, and parties cannot pre-determine child support because the law regards child support as being a right for a child, and parties cannot override that right. Custody also must be determined AT THE TIME OF THE DISPUTE since no one can predict all the circumstances which will exist at the time of a custody dispute.
I already have a house and property and I want to protect it. Will a Prenuptial Agreement help?
Yes. If you own property before the marriage and you want to protect that property in the event of divorce, a well drafted and enforceable Prenuptial Agreement can make it easier for you to keep that property in the event of a divorce.
Do I need my own lawyer if my fiancé’s attorney prepared a Prenuptial Agreement?
Yes. It is important to have your own counsel explain fully the proposed Agreement and the potential pitfalls that could affect you in the event of a divorce. Your attorney can suggest changes to the proposed Agreement that can dramatically affect to your benefit what happens in the event of a divorce.
Does my fiancé need their own lawyer if my attorney prepares a Prenuptial Agreement?
Yes. Not only does it make it more fair (each side has independent advice), it also makes it more enforceable since neither can later argue that they did not understand what they were signing.
Even if my spouse and I have a Prenuptial Agreement, can we change the terms later?
Yes. You can “re-up the Prenup” by having your attorney prepare an addendum to the original Agreement. After that has been properly signed and witnessed, it becomes a part of the original Agreement and will reflect the new terms you have changed.
What if my spouse and I decide, after years of marriage, that we no longer want to have the Prenuptial Agreement in effect?
Most well-written Prenuptial Agreements will contain a provision that dictates exactly how to cancel the Prenuptial Agreement so that it is no longer in effect. Further, your attorney can build in “sunset” provisions to the original Prenuptial Agreement that provide for its automatic cancellation after an agreed-upon amount of years.
Will a Prenuptial Agreement determine how my spouse’s property is distributed after his/her death?
Not unless you insist on such a provision. It is strongly recommended that you each have a Last Will and Testament to cover what happens to property upon the death of a spouse. Generally, a good Prenuptial Agreement will contain language that says that either of you are free to give or will away any property you want to the other party.
Are Prenuptial Agreements expensive?
As is in most cases, the cost is based on how long it takes your attorney to prepare the Agreement. Prenuptial Agreements take a lot of time to prepare since they are an attempt to resolve disputes which have not yet occurred and which are based upon factors which do not yet exist (changes in income, assets, the birth of children, etc.) In some limited cases, Prenuptial Agreements can be prepared on a “flat fee” basis. See your attorney for more complete fee and cost information.