CopyCited 21 times | Published | Supreme Court of Georgia | Nov 9, 2009 | 286 Ga. 309, 2009 Fulton County D. Rep. 3534
...Fierman, Eatonton, for appellant. Stone & Driggers, Kice H. Stone, Macon, for appellee. NAHMIAS, Justice. This appeal involves the validity and enforceability of an antenuptial agreement. [1] The wife challenged the agreement on two grounds: (1) OCGA §
19-3-63 renders the antenuptial agreement void as a "marriage contract ....
...Discovery followed, including depositions of Mr. Lawrence and Ms. Lawrence. Mr. Lawrence filed a motion to enforce the antenuptial agreement, and both parties filed briefs addressing the relevant issues. Ms. Lawrence took the position that the antenuptial agreement was void under OCGA §
19-3-63 because it was not attested by at least two witnesses as required for every "marriage contract ....
...ial agreement was both valid and enforceable. The court then issued a certificate of immediate review, and we granted the wife's application for interlocutory appeal. See OCGA §
5-6-34(b); Rules of the Supreme Court of Georgia, Rules 30-32. 3. OCGA §
19-3-63 provides that "[e]very marriage contract in writing, made in contemplation of marriage, ....
...the parties hereby specifically agree as follows:. . . . *424 Consequently, the antenuptial agreement at issue is clearly a contract made in contemplation of divorce, not a contract made in contemplation of marriage. As such, it is not subject to the dual attestation requirement of OCGA §
19-3-63. See Dove,
285 Ga. at 651,
680 S.E.2d 839. Accordingly, the trial court did not err in upholding the validity of the antenuptial agreement against the challenge under OCGA §
19-3-63....
CopyCited 19 times | Published | Supreme Court of Georgia | Jun 15, 2009 | 285 Ga. 647, 2009 Fulton County D. Rep. 2276
...SEARS, Chief Justice. We granted appellant Paul Dove's application for interlocutory appeal to consider whether the trial court erred by ruling that the parties' prenuptial agreement was unenforceable because it was required to be attested by two witnesses under OCGA §
19-3-63 but was not....
...Lauri Dove has filed a cross-appeal, contending that the trial court erred in ruling that the prenuptial agreement satisfied the criteria of Scherer v. Scherer . [1] For the reasons that follow, we conclude the trial court erred in ruling that OCGA §
19-3-63 applies to the prenuptial agreement but did not err in ruling that Scherer was satisfied. Case No. S09A0197 1. OCGA §
19-3-63 provides, in relevant part, that "[e]very marriage contract in writing, made in contemplation of marriage ......
...uable consideration. [14] Prenuptial agreements settling property rights at death have uniformly been considered to be in contemplation of marriage and have uniformly been considered valid in this State and elsewhere. [15] 4. The predecessor to OCGA §
19-3-63 was first enacted in 1863. Since then, it has been brought forward in identical language into the Codes of 1868, 1873, 1882, 1895, 1910, 1933, and 1981. When it first enacted the predecessor to OCGA §
19-3-63 in 1863 and when it brought it forward into each succeeding Code, the legislature did so based on case law approving of prenuptial agreements transferring property at death on the ground such agreements were in contemplation of marriage....
...ce and thus void. [17] Because our legislature is presumed to enact statutes with full knowledge of existing law, including court decisions, [18] it defies common sense and logic to conclude that, when the legislature enacted the predecessor to OCGA §
19-3-63 in 1863 and brought it forward into each succeeding Code, it intended it to apply to void prenuptial agreements....
...[21] In Scherer, in deciding the circumstances under which prenuptial agreements made in contemplation of divorce would not violate the public policy of this State, this Court did not specify that it was necessary for such agreements to comply with OCGA §
19-3-63 in order to comply with public policy. Thus, this Court must have considered and rejected the proposition that such a prerequisite existed. Moreover, although the dissent states that we have explicitly acknowledged that the applicability of OCGA §
19-3-63 to prenuptial agreements settling alimony is an open question, this is not accurate. In Scherer, instead of specifying that prenuptial agreements had to comply with OCGA §
19-3-63 to be valid, we specified that courts should employ three definitive criteria in making this determination....
...Since Scherer, we have stated that "[t]he three-part test we adopted in Scherer is consistent with the standards governing the enforcement of antenuptial agreements that prevail throughout most of the nation today." [23] In Chubbuck, although we noted that the issue whether OCGA §
19-3-63 applied to prenuptial agreements settling alimony was raised before the trial court, [24] we also stated in Chubbuck that "[w]e have been unable to find a case in which an antenuptial agreement made in contemplation of divorce has been rul...
...d demonstrates that this Court has viewed these criteria as exhaustive. [26] To hold such agreements void now unless attested by two witnesses would do a disservice to the bench and bar and to the litigants involved. Furthermore, a holding that OCGA §
19-3-63 applies to prenuptial agreements settling alimony would put this State in the distinct minority of states that require witnesses to prenuptial agreements settling alimony issues....
...ot added one. [28] Moreover, it appears that most other states have adopted a test similar to the one we adopted in Scherer for determining the validity of such agreements. [29] 6. For the foregoing reasons, the trial court erred in ruling that OCGA §
19-3-63 applies to prenuptial agreements settling alimony....
...is state's longstanding statutory mandate that all prenuptial agreements be attested in writing by at least two witnesses. The majority defends its creation of that special status by making a disingenuous semantical argument, by misinterpreting OCGA §
19-3-63 as inflexibly applying only *844 to agreements settling property rights at death, by completely disregarding the clear intent of Scherer v....
...635,
292 S.E.2d 662 (1982), to limit the enforceability of modern prenuptial agreements more strictly than other marriage contracts, and by inexplicably relying on a modern uniform act which the General Assembly of Georgia has not seen fit to pass. 1. "OCGA §
19-3-63 states that `(e)very marriage contract in writing, made in contemplation of marriage, ......
...plation of divorce." Accordingly, prenuptial agreements settling the parties' rights in the event of a divorce clearly come within the plain terms of a statute which expressly applies to contracts made "in contemplation of marriage." 2. Neither OCGA §
19-3-63 nor any other section of Article 3, OCGA §
19-3-60 et seq., limits its application to marriage contracts which involve a transfer of property....
...eements "are not absolutely void as against public policy," but "should not be given carte-blanche enforcement." Scherer v. Scherer, supra at 640(2), 641(3),
292 S.E.2d 662. Of particular interest, the first part of the Scherer test, similar to OCGA §
19-3-63, seeks to prevent fraud or duress in the execution of prenuptial agreements....
...In light of that continuing public policy and my understanding of marriage contracts as expressed in this state's statutory and case law, I can only conclude that a prenuptial agreement which waives spousal rights upon divorce constitutes a marriage contract subject to the provisions of Article 3, including OCGA §
19-3-63....
...uptial agreements settling alimony issues would do a disservice to the bench and bar, who have supposedly viewed the Scherer criteria as exhaustive, fails to recognize explicit acknowledgments by both the bench and bar that the applicability of OCGA §
19-3-63 was an open question....
...a subject of the appeal. We granted an interlocutory appeal here in order to resolve the very issue which was left open in Chubbuck. Moreover, the majority's holding causes substantial confusion by raising additional questions, such as whether OCGA §
19-3-63 applies to prenuptial agreements which deal with both divorce and death, or which define each spouse's marital and separate property rights during marriage. The antenuptial agreement here was signed by the parties and one witnessthe notary public.... Because two witnesses did not sign the antenuptial agreement here, on its face it does not satisfy the plain requirement of [OCGA §
19-3-63], and it is invalid and unenforceable....
...[15] 1 Clark at 48, 53; Sieg
265 Ga. at 385-386,
455 S.E.2d 830; Carr,
250 Ga. at 107, n. 1,
296 S.E.2d 560; Nally,
74 Ga. 669 (1885); Neves,
50 U.S. at 207; Vason,
53 Ga. at 423-425; Merritt,
6 Ga. at 573. [16] Brown v. Ransey,
74 Ga. 210, 215 (1885) (noting that then OCGA §
19-3-63 was enacted based on Blake v....
CopyCited 1 times | Published | Supreme Court of Georgia | Sep 10, 2012 | 731 S.E.2d 676, 2012 Fulton County D. Rep. 2740
...In this divorce case, the husband disputed the validity and enforceability of the parties’ self-styled “Premarital Agreement.” He argued, among other things, that the agreement is actually a “marriage contract . . . made in contemplation of marriage,” OCGA §
19-3-63, but it was not attested by two witnesses as required by that statute to be valid....
...ng other things, that the Premarital Agreement, reviewed as a whole, was a “marriage contract in writing, made in contemplation of marriage” and that it therefore was void because it was not attested by at least two witnesses as required by OCGA §
19-3-63....
...By contrast, for more than 150 years, the Code has said that “[e]very marriage contract in writing, made in contemplation of marriage, shall be liberally construed to carry into effect the intention of the parties and no want of form or technical expression shall invalidate the same.” OCGA §
19-3-63....
...The Premarital Agreement at issue in this case was attested by only one witness, so if it is a “marriage contract,” it is invalid and unenforceable.
Prenuptial agreements that settle property rights only during the course of a prospective marriage or at death are marriage contracts under OCGA §
19-3-63....
...On the other hand, contracts that provide for alimony payments in the event of divorce, or that direct how property should be distributed if the parties divorce, are considered to be made in contemplation of divorce rather than marriage alone and thus are not subject to OCGA *494§
19-3-63’s attestation requirement. See Lawrence,
286 Ga. at 311-312 (holding that an agreement which both addressed alimony and divided the parties’ property in the event of divorce was not a marriage contract subject to OCGA §
19-3-63); Dove, 285 Ga....
...ontract . . . made in contemplation of marriage,” not a prenuptial agreement made in anticipation of divorce, and the trial court therefore correctly denied enforcement of the agreement due to noncompliance with the attestation requirement of OCGA §
19-3-63....
CopyCited 1 times | Published | Supreme Court of Georgia | Sep 28, 2009 | 286 Ga. 53, 2009 Fulton County D. Rep. 3045
...declaring the antenuptial agreement to be enforceable. Wife appeals from the trial court's order pursuant to our grant of her application for interlocutory appeal. Wife contends that the antenuptial agreement fails to satisfy the requirement of OCGA §
19-3-63 that "[e]very marriage contract *862 in writing, made in contemplation of marriage, ... must be attested by at least two witnesses." This Court recently held that OCGA §
19-3-63 does not apply to prenuptial agreements settling alimony issues because such agreements are made in contemplation of divorce and, thus, are not considered "in contemplation of marriage." Dove v....
...Dove, supra at 648(3),
680 S.E.2d 839, we recognized that the prenuptial agreement in Sieg was "made in contemplation of marriage." Therefore, the antenuptial agreement here necessarily constitutes a "marriage contract in writing, made in contemplation of marriage," which "must be attested by at least two witnesses." OCGA §
19-3-63. Husband argues that OCGA §
19-3-63 does not apply as between the signatories of a prenuptial agreement....
...However, Georgia statutes specifically require attestation as provided by law before a deed or mortgage may be effectively recorded. OCGA §§
44-2-14(a),
44-14-39; Gardner, Dexter & Co. v. Moore, Trimble & Co.,
51 Ga. 268, 269 (1874). Neither OCGA §
19-3-63 nor any other section of Article 3, OCGA §
19-3-60 et seq., similarly links the attestation requirement to recordation of marriage contracts....
...Real Estate Law and Procedure § 19-56, p. 356 (6th ed. 2004) (accurately explaining Vizard and identifying obiter dicta therein). Because the face of the antenuptial agreement at issue in this case shows that it was not signed by two witnesses and therefore violates OCGA §
19-3-63, the trial court erred in declaring it to be enforceable and in *863 denying the motion for partial summary judgment filed by Wife....
