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A Word from Scott Shaw: The Important and Hidden Reasons for a Prenup

Prenuptials are agreements made before marriage that define how the marital and premarital estate will be divided by a Georgia Superior Court in the event of a divorce.  It can define what assets will remain your separate, non-marital assets, what assets will become marital assets (and how that is to be defined), and it can determine what alimony, if any will be paid in case of a divorce.  

Prenuptial, or antenuptial agreements are approved of by Georgia courts, and they are enforced if properly drafted.  Prenuptial agreements in Georgia need to be reasonable when made, provide full disclosure of assets when made, and be fair at the time they are enforced.  A prenup cannot decide child custody or limit child support (but it can be suggestive).  A prenuptial agreement can greatly simplify litigation in a divorce and protect your assets at the same time.  

Of all the issues a prenuptial agreement can protect you from, the one that is often overlooked, but that can be a very big thing, is to protect you from an award of attorney’s fees to pay your spouse’s lawyer.  

Attorney Fees and Your Divorce Case

In a Georgia divorce, there are two reasons why attorney’s fees are awarded:

  • Sanctions for abusive or frivolous litigation
  • Disparity in income and resources between the spouses.

Avoiding an award of attorney’s fees for abusive or frivolous litigation is within your own control.  Listen to your attorney.  It takes egregious behavior for a court to hit you with sanctions.

However, an award of attorney’s fees to your spouse’s attorney for disparity in income is not within your control, unless you have a well-drafted prenuptial agreement.  Under Georgia law an award of attorney’s fees is considered in the nature of “alimony”.   If your prenuptial agreement properly excludes alimony, it will protect you from an award of attorney’s fees.  

An Example of How a Prenuptial Agreement can Protect You:  

This can be true even for the most horrible and atrocious behavior from frivolous litigation. In 2017, a case I was involved with was decided by the Georgia Supreme Court. The husband in the case acted egregiously at trial and the trial court awarded attorney’s fees to his wife on two grounds.  

  1. $38,385 as sanctions for his abusive and frivolous litigation
  2. $60,000 to pay her remaining, but normally incurred attorney’s fees for dealing with legitimate issues in the divorce case that were separate from the sanctioned behavior 

The Georgia Supreme Court, on appeal, said no.  An award of attorney’s fees is in the nature of alimony.  The prenuptial agreement waived each party’s right to alimony from the other.  This includes an award of attorney’s fees.  Thus, the $60,000 in attorney’s fees awarded to his wife was struck down in its entirety.  Nevertheless, the husband still ended up having to pay the $38,385 for his abusive and frivolous litigation, as that was a court sanction.  No prenuptial agreement could save him from court sanctions.  But then again, that was also within his control.

Moral of the story, is even if you act atrociously in the case, even if you have treated your spouse less than honorably, a prenuptial agreement has power, and one hidden benefit to a prenuptial agreement is to protect you from an award of attorney’s fees from a Georgia court.

If you have any questions, we’d be happy to speak with you at Shaw Law Firm.  We are Atlanta, Georgia Divorce and Child Custody lawyers.