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Fox v. Fox

An agreement entered into by a couple prior to their remarriage was a marriage contract made in contemplation of marriage, not a prenuptial agreement, thus it is was unenforceable for failure to comply with the 2-witness attestation requirement of O.C.G.A. § 19-3-63.

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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. The trial court agreed, and we affirm.

1. In 2000, appellant Joanne Fox “Wife” and appellee Lyle M. Fox “Husband” divorced after 25 years of marriage. The divorce decree and incorporated settlement agreement required Husband to pay Wife monthly child support of $500, as well as monthly alimony of $1,500 for one year, $2,000 for the next three years, and $1,500 thereafter until Wife was 59 years old. By March 2002, however, the parties were planning to remarry. Without the assistance of legal counsel, they signed a nine-page document captioned “Premarital Agreement;” the document was notarized, but the notary was the only witness to it. Three months later, the parties remarried, thereby extinguishing Husband’s child support and alimony obligations. In February 2010, Wife again filed for divorce, and she sought to enforce the Premarital Agreement as a legally binding prenuptial agreement. After a hearing, the trial court entered an order on June 10, 2011, ruling, among 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. After the trial court granted a certificate of interlocutory review, we granted Wife’s interlocutory appeal.

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