Marriage – Postnuptial Agreements – Georgia

Title 19, Chapter 3, Article 1, 19-3-10. Right of married persons to contract; presumptions.

A married person may make contracts with other persons; but, when a transaction between a husband and wife is attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair. If a husband or a wife has a separate estate and purchases property from persons other than his or her spouse, the onus shall be upon a creditor levying on such property as the property of the other spouse to show fraud or to show that the husband or wife did not have the means with which to purchase the property.

Title 19, Chapter 3, Article 3, 19-3-64. Voluntary execution of antenuptial agreement; conveyance of property during marriage.

A spouse may voluntarily execute an agreement described in Code Section 19-3-62 or he may at any time during the marriage, either indirectly through trustees or directly to his spouse, convey any property to which he has title, subject to the rights of prior purchasers or creditors without notice.

19-3-66. In whose favor marriage contracts, postnuptial settlements, and marriage articles enforced.

Marriage contracts and postnuptial settlements shall be enforced at the instance of all persons in whose favor there are limitations of the estate. Marriage articles, as defined in subsection (a) of Code Section 19-3-62, shall be executed only at the instance of the parties to the contract and the offspring of the marriage and their heirs; but, when executed at their instance, the court may execute also in favor of other persons and volunteers.

19-3-67. Recordation of marriage contracts and voluntary settlements; effect of failure to record.

(a) Every marriage contract and every voluntary settlement made by one spouse with the other, whether or not in execution of marriage articles, shall be recorded in the office of the clerk of the superior court of the county of the residence of the spouse making the settlement within three months after the execution thereof. If such a contract or settlement is made in another state and the parties subsequently move into this state, the same shall be recorded within three months from the move. If the settled property is in this state and the parties reside in another state, the record shall be made in the county where the property is located within the time specified above.

(b) A contract or settlement which is not recorded as provided in subsection (a) of this Code section shall be of no force or effect against one who, bona fide and without notice, becomes a purchaser, creditor, or surety before the actual recording of the same.

19-3-68. Application for order compelling recordation; effect of application; liability of trustee refusing to record.

(a) If the trustee or the spouse having possession of a marriage contract or settlement fails or refuses to have the same recorded, the other spouse or any person acting on behalf of the spouse may apply to the judge of the superior court at any time for an order compelling its recordation. The application of the spouse or other person, when entered on the minutes of the superior court, shall be a notice equivalent to the record of the marriage contract or trust deed.

(b) A trustee refusing after demand to record a marriage contract or settlement shall be personally liable to his beneficiary for all damages sustained by reason of his failure to record.

Disclaimer: This law summary is not legal advice. If you are not an attorney, you should consult an attorney about serious legal matters.