Yes. Georgia judges enforce postnups that assign the marital home, and the Supreme Court of Georgia affirmed one that gave a husband the house in Spurlin v. Spurlin (2011). The agreement still has to pass the Scherer test, and full financial disclosure comes first. A Henry County postnup lawyer drafts the house terms, the disclosure, and any deed together.
E.N. Banks-Ware Law Firm handles postnuptial agreements, divorce, and property division for married couples in McDonough, Stockbridge, and the rest of Henry County. Attorney E. Noreen Banks-Ware has practiced family law since 1991 and holds a certification in Collaborative Law. She has also served as a Special Assistant Administrative Law Judge. The office is at 3636 Panola Road, Suite A, Stonecrest, GA 30038, and the firm takes calls 24 hours a day, 7 days a week.
Does your postnup mention the house, or are you about to sign one that does? Call E.N. Banks-Ware Law Firm at (470) 570-9546 to book a private consultation, and bring the deed and your latest mortgage statement.
How Georgia Courts Treat a Postnup That Assigns the House
Georgia enforces postnups through court decisions, not through a postnup statute. Citing Curry v. Curry (1990) and Spurlin, the Court of Appeals of Georgia said in 2026 that the test built for prenups applies equally to postnups. A postnuptial agreements attorney at E.N. Banks-Ware Law Firm starts every house clause from that test.
So a married couple can decide the house in advance. Whether a judge honors that choice later turns on how the agreement was made, what it disclosed, and how clearly it was written. Two sources shape the answer. One is a line of Georgia cases, and the other is a short article of the state code that says less than most people assume.
The Spurlin Agreement That Gave the Husband the Home
Spurlin v. Spurlin shows a house clause doing its job. The couple married in 1998. After the wife dismissed an earlier divorce filing, they signed a reconciliation agreement in 2007 that gave the husband the marital residence. The final divorce judgment’s property awards matched it, and the Supreme Court of Georgia affirmed on October 3, 2011. She later claimed she never received financial disclosure. The Court disagreed, because she had entered the family business’s financial information into a computer and handled most of his paychecks and the family bills.
What Georgia’s Code Says About Postnups, and What It Leaves Out
Georgia’s marriage contract statutes run from O.C.G.A. 19-3-60 through 19-3-66, and they speak mostly to prenups. Section 19-3-60 defines an antenuptial agreement as a contract entered into before a marriage. Three sections matter most to a couple who is already married.
- O.C.G.A. 19-3-62 requires an antenuptial agreement to be in writing, signed by both parties, and attested by two witnesses, one of them a notary public.
- O.C.G.A. 19-3-64 lets a spouse convey property he or she holds title to directly to the other spouse at any time during the marriage.
- O.C.G.A. 19-3-66 names postnuptial settlements and says who may enforce them, but it sets no signing rule for them.
Several pages online treat the 19-3-62 witness rule as a postnup requirement. By its own terms, it governs antenuptial agreements, and no section sets a separate signing rule for postnups. Curry and later cases supply the test instead, much like how Georgia courts test a prenup. Signing with two witnesses, one of them a notary, still costs little and takes one argument off the table.
What Happens to a Henry County House Without a Postnup
Without an agreement, Georgia’s default rules decide the house. O.C.G.A. 19-3-9 says each spouse’s separate property remains separate, except as the divorce and alimony chapters provide. A home bought during the marriage generally goes into property division as a marital asset.
The harder cases involve a house one spouse owned before the wedding, or a deed that moved between the spouses later. Those are the two situations a postnup settles most often. How either one plays out in your marriage depends on records a lawyer has to review, starting with the closing statement and the deed history.
A Home One Spouse Owned Before the Wedding
A house you bought before the marriage starts out as your separate property. It rarely stays purely separate once marital paychecks start covering the mortgage. Georgia handles that mix through the source of funds rule, which divides the home’s value according to who paid for what. The rule sounds simple, and the proof is where most Henry County couples get stuck.
Mortgage Payments Made With Marital Money
In Hubby v. Hubby (2001), marital funds paid the house payments on a home one spouse brought into the marriage. The Supreme Court of Georgia held that the increase in net equity was subject to equitable division. Thomas v. Thomas (1989) explains the idea, since the property counts as both separate and marital in proportion to each contribution. Years of joint paychecks on a Locust Grove mortgage can build a marital share in a premarital house.
Why a $15,000 Remodel Did Not Count in Horton
The rule needs values, not just receipts. In Horton v. Horton (2016), the wife spent more than $15,000 remodeling her husband’s premarital house and made mortgage payments. Her claim still failed. The record had no fair market value for the house at the marriage, at the time of her payments, or at the divorce. A postnup can fix the starting value now, with an appraisal attached, so nobody has to rebuild it from memory years later.
Putting a Spouse on the Deed or Taking One Off
Couples retitle a house for many reasons, such as refinancing, an estate plan, or a credit problem. Each deed between spouses can carry real weight in a later Georgia divorce. The law starts from a presumption about what that deed means. Your intent on signing day matters, and a postnup is the right place to record that intent in writing.
Georgia’s Gift Presumption for Deeds Between Spouses
Horton restated the rule in 2016. When one spouse conveys real property to the other, Georgia law presumes the conveyance is a gift, and that gift has the status of marital property. The Court traced the rule through Mallard v. Mallard (2015). A spouse who deeds a premarital house to the other can turn separate property into marital property without meaning to.
McArthur and the Marital Home Deeded as a Gift
McArthur v. McArthur (1987) is the older case behind the presumption. The husband had deeded the marital home to his wife as a gift. The Supreme Court of Georgia held that the home remained marital property subject to equitable division. It did not become her separate property, so the deed alone did not make the house hers to keep.
Horton and the Deed Signed Before a Bankruptcy
The presumption can be overcome. In Horton, the husband deeded his premarital house to his wife on February 6, 2013, because he was contemplating bankruptcy. She deeded it back on March 28, 2013, after he learned the transfer would not keep it from a bankruptcy trustee. The Court called the first transfer anything but a gift, and the house stayed his separate property.
What a Postnup Adds to a Deed Between Spouses
A deed shows who holds title. It does not explain why the house moved or what should happen to it in a divorce. A postnup signed alongside the deed can state whether the transfer is a gift to the marriage or a change of title only. Whether a Henry County judge accepts that label still depends on the whole agreement passing the Scherer test.
What a Henry County Postnup Lawyer Puts in the House Clause
A house clause works when it answers every question a divorce would otherwise hand to a judge. Vague promises are where postnups break down. In Eversbusch v. Eversbusch (2013), a trial court enforced a postnup’s division of assets but refused its alimony formula. The Supreme Court of Georgia agreed those terms were not complete, certain, or definite.
A complete house clause in a Georgia postnup usually covers these points.
- Who keeps the house is named, or the clause says the house will be sold and how the proceeds will be split.
- It fixes how the equity is valued, including the appraisal method and the valuation date.
- A buyout amount or formula comes with a deadline to pay it.
- Either spouse’s right of first refusal to buy the other out is granted or ruled out.
- The mortgage, property taxes, and insurance are assigned until the house is sold or refinanced.
- Any deed signed between the spouses is labeled a gift to the marriage or a change of title only.
Each term has to match the deed and the loan you actually have. How a judge reads any single clause depends on its wording and on the rest of the agreement, which is why a lawyer reads them together.
Your Mortgage Lender Never Signed Your Postnup
A postnup binds the two spouses who sign it. The bank holding your Stockbridge mortgage is not a party, so the agreement cannot take a name off the loan. The spouse who keeps the house usually has to refinance or get the lender to release the other borrower. A clause with a refinancing deadline protects the spouse who moves out, since that spouse stays liable on the note until the loan changes.
Signing a Deed Now or Promising One Later
Some couples move title when they sign the postnup, and others leave the deed for the divorce decree. Under O.C.G.A. 44-5-30, a Georgia deed must be signed, delivered, and attested by an officer and one other witness. In Henry County, the Real Estate Division of the Clerk of Superior Court records it. The office requires a PT-61 form with every title change. Waiting carries a cost too, because the county’s standing order limits property moves once a divorce is filed.
What Made a Georgia Court Throw Out a Postnup in 2026?
Missing financial disclosure. In Crane v. Crane, decided February 5, 2026, the Court of Appeals of Georgia reversed an order enforcing a 2014 postnup because the husband never made a full and fair disclosure. That agreement covered the house. Each spouse kept an interest in the joint marital residence, and the wife held a right of first refusal to buy it.
The couple married in 2005 and signed the postnup nine years later. The lawyer who drafted it testified that no financial disclosure was ever prepared. One of the three judges dissented, so a later decision could narrow the ruling. What it means for an enforceable postnuptial agreement of your own depends on that agreement’s record. Crane quoted the three findings from Scherer v. Scherer (1982) that a judge must make before enforcing any Georgia postnup.
- No fraud, duress, mistake, misrepresentation, or nondisclosure of material facts produced the agreement.
- The agreement is not unconscionable.
- Nothing has changed since signing in a way that makes enforcement unfair and unreasonable.
The spouse asking the court to enforce the postnup carries the burden on these questions. In Crane, only the first one was in dispute, and it decided the appeal.
Access to Accounts Is Not the Same as Disclosure
Crane draws a hard line between access and knowledge. The trial judge enforced the agreement because the wife could log in to joint accounts and see joint tax returns and mortgage papers. The Court of Appeals held that reasoning relieved the husband of a duty that was his alone. Quoting Kwon v. Kwon (2015), it wrote that “the burden is not on either party to inquire, but on each to inform,” and the husband never informed. Spurlin came out the other way because that wife ran the family finances and had actual knowledge of them.
Attached Financial Statements Versus Memory
Georgia does not require financial statements stapled to the agreement. Citing Lawrence v. Lawrence (2009), Crane noted that attaching statements of both spouses’ assets, liabilities, and income is the most effective way to meet the duty in most cases. The husband in Crane had only his own testimony that the couple discussed their finances. The trial judge had already called an attached financial statement very good practice.
Why an Alimony Waiver Raises the Stakes
Disclosure matters most when one spouse gives up support. Crane relied on Corbett v. Corbett (2006), where a husband’s undisclosed income was material to the wife’s decision to waive alimony. The Crane record said nothing about the husband’s income, his 401(k) balance, or the profits from his textbook business investment. Without those numbers, the court held, the wife could not have understood what she waived. A spousal support attorney reads any waiver against the numbers behind it.
A Judge Can Enforce Part of a Postnup and Refuse the Rest
One flawed clause does not always sink the whole agreement. In Alexander v. Alexander (2005), quoted in Crane, the Supreme Court of Georgia said the trial court essentially sits in equity and may approve an agreement in whole or in part. Eversbusch shows the split in practice, with the asset division enforced and the alimony formula refused. Whether a house clause survives when another section falls depends on how the clauses connect, and a lawyer checks that line by line.
What a Postnup Cannot Decide for Henry County Parents
A postnup can divide the house, but it cannot lock in custody or child support. In Spurlin, the custody award rested on the trial court’s own analysis of the children’s best interests, so the Supreme Court did not need the postnup to uphold it. O.C.G.A. 19-9-3 directs Georgia judges to decide custody by the best interests of the child.
That limit reaches the house clause too, because the home often sits beside the parenting plan. A clause that keeps the house with one parent cannot promise the children will live there. A Henry County child custody lawyer treats that as a decision the judge makes at the divorce, on the facts as they stand then.
Child support works the same way. Paragraph 5(B) of the Henry County Domestic Relations Standing Order requires every final order setting or changing child support to follow the Georgia Child Support Guidelines in O.C.G.A. 19-6-15, with a completed worksheet and addendum. A support figure written into a postnup years earlier does not replace that worksheet.
How a Postnup Fight Moves Through Henry County Superior Court
A postnup dispute usually surfaces inside the divorce case. In Crane, the husband filed a motion to enforce the agreement, and the trial court ruled on it before entering the divorce decree. Under Article VI, Section II, Paragraph I of the Georgia Constitution, a divorce goes to the county where the defendant spouse lives, when that spouse is a Georgia resident.
If that spouse lives in Henry County, the case belongs to Henry County Superior Court in the Flint Judicial Circuit, at 1 Courthouse Square in McDonough. Its four judges signed the Domestic Relations Standing Order on June 30, 2025, and a copy enters the record of every domestic case. A family law attorney in Henry County reads two of its paragraphs before advising on any house clause.
The Property Freeze in Paragraph 2(C)
Paragraph 2(C) applies in every divorce or separate maintenance case. Neither spouse may sell, mortgage, encumber, or increase the debt secured by property either one has an interest in. The order still allows ordinary transactions for fair value, such as routine household expenses and mortgage payments. A refinancing or deed your postnup schedules for after filing can collide with this paragraph, so the clause should set its timing.
The Mediation Release Required Before a Hearing
Paragraph 5(C) sends every contested domestic case to the Sixth Judicial District Alternative Dispute Resolution Program. No hearing gets scheduled, temporary hearings included, until a release from the program is filed with the Clerk, unless the assigned judge finds an emergency. By its terms, that reaches a hearing on a motion to enforce the postnup. A Henry County divorce lawyer brings the postnup and the deed to that session side by side.
Questions Henry County Couples Ask About Postnups and the House
These questions come up when a McDonough or Stockbridge couple starts talking about a postnup, or when one spouse finds an old agreement in a file. Each answer names its Georgia source. Your own agreement and records still decide how any answer applies to you.
Does a Georgia Postnup Have to Be Notarized?
No Georgia statute says so directly. O.C.G.A. 19-3-62 requires two witnesses, one a notary, for antenuptial agreements, and the code sets no separate signing rule for postnups. A deed that moves the house is different, since O.C.G.A. 44-5-30 requires attestation by an officer and one other witness.
Do We Have to Record Our Postnup With the Henry County Clerk?
No statute requires it today. Former O.C.G.A. 19-3-67 required recording of marriage contracts and voluntary settlements between spouses, and House Bill 190 repealed it effective July 1, 2018. A deed that changes title still goes to the Clerk of Superior Court’s Real Estate Division with a PT-61 form.
Can We Sign a Postnup Years Into the Marriage?
Yes. The Crane couple signed theirs nine years after their 2005 wedding, and the Spurlin couple signed after an earlier divorce filing was dismissed. Under Curry v. Curry (1990), the same three-part test applies to a postnup whenever it was signed.
Can a Georgia Postnup Waive Alimony?
Georgia courts review an alimony waiver in a postnup under the same three-part test as the rest of the agreement. In Crane, the waiver fell with the agreement because the record never showed the husband disclosed his income. Corbett v. Corbett (2006) treats that income as material when a spouse gives up alimony.
Talk With a Henry County Postnup Lawyer Before You Sign or Retitle the House
A postnup that assigns the house can hold up in a Henry County divorce, or it can fall apart over one missing schedule. Crane shows how that happened to an agreement drafted by a lawyer and signed before a notary. Spurlin shows the other path.
A Henry County postnup lawyer at E.N. Banks-Ware Law Firm reviews the deed, the mortgage, and every disclosure before anything is signed. If you already have a postnup, the firm reads it against Curry, Crane, and the Henry County standing order. No lawyer can promise how a judge will rule, but a complete record answers the questions a judge has to ask.
Call E.N. Banks-Ware Law Firm at (470) 570-9546 to book a private consultation. The firm takes calls 24 hours a day, 7 days a week. You can also send a message through the firm’s contact page, and bring the agreement, the deed, and recent account statements to the meeting.