A Call to Georgia Courts to Expound Upon the Factors Enumerated in Scherer v. Scherer - An Overview of Prenuptial Agreement Enforceability

Sep 16, 2026

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A legal analysis argues that Georgia courts should more thoroughly address the enforceability factors for prenuptial agreements identified in Scherer v. Scherer. It outlines three key criteria—fraud, duress, mistake, misrepresentation or nondisclosure; unconscionability; and whether changed circumstances make enforcement unfair. The discussion compares Georgia’s limited case law with other jurisdictions and the Uniform Premarital Agreement Act, emphasizing voluntary execution and fair disclosure of property and financial obligations.

LanguageEnglish

CategoryGeneral

FormatPDF

Pages13

Reading Time5 min

AccessFree to download

Introduction

Criteria from Scherer v. Scherer

Comparison to the Uniform Premarital Agreement Act (UPAA)

Prenuptial Agreements and Fraud/Duress/Mistake

Timing of execution

Legal counsel and financial disclosure

A CALL TO GEORGIA COURTS TO EXPOUND UPON THE FACTORS ENUMERATED INSCHERER v. SCHERER by: Marvin L. Solomiany I. INTRODUCTION Throughout the past decade, the number of Prenuptial Agreements being entered into by marrying couples has significantly increased. As a direct result of the increase in Prenuptial Agreements, a large volume of case law exists throughout the country governing the enforceability of such Agreements and has also resulted in more than 15 states adopting the Uniform Premarital Agreement Act (UPAA) which includes provisions relating to the enforcement of Prenuptial Agreements. Unfortunately, Georgia has not followed the lead of other states and has not elaborated upon the factors enumerated by the Supreme Court in Scherer v. Scherer, 249 Ga. 635 (1982) . In Scherer, the Court enumerated the following three (3) criteria which must be applied when determining the enforceability of Prenuptial Agreements: (1) Was the Agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the Agreement unconscionable? and (3) Have the facts and circumstances changed since the Agreement was executed, so as to make its enforcement unfair and unreasonable? Although Georgia has not adopted the UPAA, it is interesting to note that the criteria enumerated by the Court in Scherer is similar to the provisions contained in the UPAA governing the enforceability of Prenuptial Agreements which is as follows: § 6. Enforcement (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. (c) An issue ofunconscionability of a premarital agreement shall be decided by the court as a matter of law. UPAA. § 6. Arguably, Georgia Courts have not sufficiently elaborated upon the factors enumerated in Scherer to allow the practitioner to gain a clear understanding of the factors which will be considered when determining the enforceability of a Prenuptial Agreement. While the Georgia Supreme Court has considered the enforceability of Prenuptial Agreements in a limited number of cases, it is still not clear which factors will be analyzed by Georgia Courts when determining the enforceability of a Prenuptial Agreement. Due to the lack of elaboration by Georgia Courts on these issues, it is necessary to review the analysis performed by other state Courts which have expounded upon factors similar to those enumerated by the Court in Scherer. A. Prenuptial Agreements Will Not Be Enforced If Obtained Through Fraud, Duress, Mistake Or Through Misrepresentation and Nondisclosure of Material Facts. Although Georgia Courts have not enumerated the factors which should be considered when making the determination whether a Prenuptial Agreement was obtained through fraud, duress, mistake and through misrepresentation and nondisclosure of material facts, Georgia Courts should consider factors which have been applie

FAQs

What three criteria did the court identify in Scherer v. Scherer for prenuptial agreement enforceability?

The court identified: (1) whether the agreement was obtained through fraud, duress, mistake, or misrepresentation/nondisclosure of material facts; (2) whether the agreement is unconscionable; and (3) whether facts and circumstances changed after execution so enforcement would be unfair and unreasonable.

How does the UPAA address when a premarital agreement is not enforceable?

Under UPAA § 6, a premarital agreement is unenforceable if the opposing party proves it was not executed voluntarily, or that it was unconscionable when executed and the party lacked fair and reasonable disclosure and adequate knowledge of the other party’s property or financial obligations, without a proper written waiver.

Why is the timing of prenuptial agreement execution important in fraud and duress analysis?

The analysis treats the negotiation-to-signing timeline as critical because courts heavily consider whether the parties discussed the agreement well before signing; discussions occurring weeks in advance increase the chance of enforcement, while only a few days before marriage can support a finding of involuntariness.

Sep 16, 2026

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