As a general rule, a divorce decree can only be set aside in Georgia within three years of the divorce decree having been entered. OCGA § 9-11-60(f) establishes the exclusive time limitation for when a judgment is attacked by a motion to set aside. Importantly, the statute provides that a judgment void for lack of subject matter or personal jurisdiction may be attacked at any time, but further states that in “all other instances,” a motion to set aside a judgment must be filed within three years of entry of the judgment.
The 2016 Georgia Supreme Court case of Myles v. Myles, 300 Ga. 261, 794 S.E.2d 56 (2016) discusses when it is appropriate to set aside a divorce judgment. The court reversed the judgment of the trial court; the trial court had granted wife’s motion to set aside the final judgment and decree of divorce due to husband’s misrepresentations about income and ownership in real property. Although the grant of the motion to set aside seemed proper on its face, the motion to set aside was filed more than three years after the final judgment and decree of divorce, well outside of the three-year statute of limitation.
The trial court incorrectly held that the statute of limitation started to run upon wife’s knowledge that husband possessed certain undisclosed assets. O.C.G.A. § 9-11-60(f) states that a motion to set aside must be brought within three years of a judgment, not within three years of a party’s knowledge of a reason to attack that judgment. A judgment may only be set aside outside of the three-year statute of limitation period when a party seeks to set aside the judgment for lack of subject matter or personal jurisdiction. Since wife did not allege that the final judgment and decree should be set aside due to the absence of subject matter or personal jurisdiction, the court ruled that her motion to set aside divorce must be dismissed despite its perceived merit.
Due to the potential time limitations and implications, it is highly recommended that you consult with a Georgia divorce attorney or law firm if this is a situation you are facing.
Our law firm’s Atlanta based attorneys are frequently asked: “Do I need a prenuptial agreement?” or “How do I know if a prenup is right for me?” The purpose of this article is to answer these questions and more if you are considering a prenuptial agreement and you live in Georgia. Chances are that if you’re getting married, the idea of getting a prenuptial agreement has crossed your mind, even if you haven’t voiced it out loud to your future spouse. While it might not seem like the most romantic topic, considering whether a prenuptial agreement is right for you is nonetheless extremely important. The reality is that prenuptial agreements are not only for the rich and famous.
Whether or not you bring up the topic of a prenuptial agreement with your fiancé of fiancée, some of the fundamental principles regarding entering a prenuptial agreement should almost certainly be followed before you get married. Specifically, as many studies of shown, it is a good idea for future spouses to have an open and honest discussion about their finances and financial picture. And of course, one of the critical components to a proper prenuptial agreement is full and complete financial disclosure.
Many people are under the misconception that discussing prenuptial agreements means that their future spouse has little faith in the marriage. That is simply not the case. A prenuptial agreement can essentially be compared to an insurance policy – you hope you never have to use it, but if you do, you are thankful that it is there to protect you. It is no secret that divorces can be quite complicated and a prenuptial agreement can help alleviate some of the stress and actually de-complicate some of the issues typically encountered during a divorce.
As you may know, a prenuptial agreement is a contract entered by a couple before their marriage and such agreements are recognized as valid in Georgia. Generally, prenuptial agreements concern and address issues typically involved in divorce, such as property division, property rights, liabilities, debts, and alimony. A well-written prenuptial agreement should address separate and joint property. Although prenuptial agreements may cover a wide range of issues, there are some matters that cannot be addressed. Generally, prenuptial agreements do not address child custody and child support because the best interest of the child is determined at the time of divorce.
How do you know if a prenuptial agreement is right for you? You should consider having a prenuptial agreement drafted if you or your future spouse answers “yes” to any of the following questions:
– Do either of you have professional licenses or degrees?
– Do either of you have significant family wealth or expected future inheritance?
– Do either of you currently earn more than $100,000.00 per year?
– Is there a disparate difference between your income / assets and those of your future spouse?
– Do either of you consider yourself high net worth individuals?
– Do either of you have specific property you want to protect?
– Does your spouse have significant debt or student loans and you do not?
– Do either of you have significant stock holdings, stock options, profit sharing, bonds, other investments, or cash?
– Do you have any children and/or grandchildren from a previous marriage?
– Do either of you own any real estate (including investment / rental property)?
– Are either of you a business owner or have a family owned business?
– Do either of you have retirement benefits?
– Do you have loved ones who need to be taken care of such as elderly parents?
– Do you want your estate (or even just part of it) to go to your children (and/or children of a former marriage) instead of your spouse?
While this list is certainly not all-inclusive, it may help you decide whether or not a prenuptial agreement is appropriate for you. If you are considering entering into a prenuptial agreement, I strongly encourage you to schedule a confidential consultation with an attorney who specializes and has experience in this area of law and with drafting and/or negotiating prenuptial agreements.
The attorneys at the Georgia law firm of Naggiar & Sarif are experienced lawyers who can help answer your questions regarding prenuptial agreements (and postnuptial agreements which are very similar to prenuptial agreements except the parties are already married).
Please feel free to contact us to schedule a confidential consultation if you are interested in learning more about prenuptial agreements or if you are considering entering into one in Georgia.
The family law attorneys at Naggiar & Sarif are skilled and experienced leaders in divorce and family law who will help you navigate what is likely a very difficult time in your life. Our attorneys have received many recognitions and awards over the years, but the acclaim and appreciation of our clients is what drives us. The achievement of our client's goals are our paramount concern.
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