Quick answer: Georgia enforces prenuptial (antenuptial) agreements that are in writing, signed by both parties and attested by at least two witnesses, one of them a notary public (O.C.G.A. § 19-3-62). At divorce, a judge applies the three-part test from Scherer v. Scherer (1982): no fraud, duress, mistake or nondisclosure of material facts; not unconscionable; and no change in circumstances that makes enforcement unfair. A prenup cannot limit child support or decide custody. Scot Sikes drafts and reviews prenups for Columbus and Fort Benning couples.
A prenuptial agreement is a contract two people sign before marriage to decide in advance how property, debts and alimony will be handled if the marriage ends or one spouse dies. Georgia has not adopted the Uniform Premarital Agreement Act. Instead, the rules come from a short set of statutes and from Georgia Supreme Court cases, which makes careful drafting important.
Formal Requirements
- In writing and signed by both parties. Oral prenups are not enforceable (O.C.G.A. § 19-3-62).
- Two witnesses, one a notary. O.C.G.A. § 19-3-62 requires the agreement to be signed by both parties and attested by at least two witnesses, one of whom is a notary public. O.C.G.A. § 19-3-63 adds a two-witness rule for marriage contracts generally.
- Signed before the wedding. An agreement signed after the marriage is a postnuptial agreement, discussed below.
The Scherer Test for Enforceability
When one spouse asks a Georgia court to enforce a prenup in a divorce, the judge asks three questions from Scherer v. Scherer, 249 Ga. 635 (1982):
- Was the agreement obtained through fraud, duress, mistake, misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable?
- Have the facts and circumstances changed since the agreement was signed so that enforcing it would be unfair and unreasonable?
The spouse relying on the agreement should be able to show full and fair financial disclosure. The most common reason prenups fail is a missing or incomplete financial disclosure, followed by agreements presented days before the wedding without time to review them.
What a Prenup Can and Cannot Do
- Can: define separate and marital property, protect a business or inheritance, assign debts, waive or limit alimony, and coordinate with estate plans.
- Cannot: limit a child’s right to support or decide custody in advance. Those issues are always decided under the child’s best interests and the Georgia child support guidelines when the time comes.
- Should not: include lifestyle clauses that a court is unlikely to enforce, or terms so one-sided that they invite an unconscionability challenge.
Prenups for Military Couples
- Military retired pay. Retired pay is divisible under the USFSPA. A prenup can define how the marital share is treated, but the order dividing it must still meet DFAS requirements at divorce.
- VA disability. Disability compensation is not divisible property, and federal law limits what a state court can do with it (Howell v. Howell, 2017). Draft with that in mind.
- Survivor Benefit Plan, TSP and life insurance. Address them expressly, including whether former-spouse SBP coverage will be provided.
- Signing overseas. A service member stationed away from Georgia can sign before a military notary (10 U.S.C. § 1044a), but leave enough time for review before the wedding.
Postnuptial Agreements
Couples who are already married can sign a postnuptial agreement. Georgia courts generally review them under the same Scherer factors, and full disclosure and fairness matter just as much. Postnups are common after an inheritance, a business launch, or a reconciliation after separation. If a couple is separating, the right document is usually a separation agreement instead.
A Practical Checklist
- Start at least two to three months before the wedding.
- Each person should have their own lawyer.
- Exchange complete financial statements and attach them to the agreement.
- Sign before two witnesses, including a notary, well before the wedding date.
- Review the agreement after major life changes, such as children, a new business or retirement.
Talk With Scot Sikes
Consultations with Scot Sikes are $200 and cover your specific situation, the Georgia law that applies and your realistic options. Call 706-494-6900 or use the contact page. The office is at 5 Bradley Park Court, Suite 101, Columbus, GA 31904, about 15 minutes from Fort Benning’s main gate.
Frequently Asked Questions
Are prenups enforceable in Georgia?
Yes, if they are in writing, signed by both parties, attested by two witnesses including a notary, and they pass the Scherer v. Scherer test: no fraud, duress, mistake or nondisclosure; not unconscionable; and no change in circumstances that would make enforcement unfair.
Does a Georgia prenup have to be notarized?
Yes, in effect. O.C.G.A. § 19-3-62 requires a Georgia antenuptial agreement to be in writing, signed by both parties and attested by at least two witnesses, one of whom is a notary public.
Can a prenup waive alimony in Georgia?
Yes. Georgia courts enforce alimony waivers in prenups that pass the Scherer test. A waiver obtained without full financial disclosure, or one that is unconscionable when enforced, can be set aside.
Can a prenup decide child custody or child support?
No. Custody is decided by the child’s best interests and child support by the Georgia guidelines when the case arises. Parents cannot bargain away a child’s right to support in advance.
Can military retirement be addressed in a prenup?
Yes. A prenup can define how military retired pay and the Survivor Benefit Plan will be handled, but VA disability compensation cannot be divided, and any division of retired pay must meet USFSPA and DFAS rules.
What’s the difference between a prenup and a postnup?
A prenup is signed before the wedding; a postnup is signed during the marriage. Georgia courts generally apply the same fairness and disclosure standards to both.
More answers: see our Columbus, GA and Fort Benning family law FAQ.
About the author. Scot Sikes founded the Law Offices of Scot Sikes in Columbus, Georgia, in 2006. He earned his J.D. at Mercer University’s Walter F. George School of Law, was admitted to the State Bar of Georgia in 1999, and served as an Army judge advocate (trial counsel, Senior Defense Counsel and Deputy Staff Judge Advocate) before retiring from the U.S. Army Reserve as a lieutenant colonel in 2017. His practice centers on family law, military divorce and military family law in the Chattahoochee Judicial Circuit, and courts have qualified him as an expert witness on dividing military property in divorce. Read Scot Sikes’s full profile. Law Offices of Scot Sikes, 5 Bradley Park Court, Suite 101, Columbus, GA 31904 · 706-494-6900.
Last updated November 2026. Sources: O.C.G.A. § 19-3-62 (antenuptial agreements); O.C.G.A. § 19-3-63 (attestation of marriage contracts); Scherer v. Scherer, 249 Ga. 635 (1982); 10 U.S.C. § 1408 (Uniformed Services Former Spouses’ Protection Act); Howell v. Howell, 581 U.S. 214 (2017); 10 U.S.C. § 1044a (military notaries). This page is general information about Georgia law, not legal advice for your situation.