Wife contends that the trial court erred in enforcing the postnuptial agreement when that document shows that Husband failed to comply with the affirmative duty of full and fair disclosure of his financial condition. See Curry v. Curry, 260 Ga. 302, 303(2)(b), 392 S.E.2d 879 (1990) (same criteria for determining whether to enforce an antenuptial agreement applies to reconciliation agreements); Scherer v. Scherer, 249 Ga. 635, 640(3), 292 S.E.2d 662 (1982). In its order on the motion to enforce, the trial court made the following relevant findings:
This Court has repeatedly stated that prenuptial agreements settling alimony issues are made in contemplation of divorce, not marriage.Blige v. Blige, 283 Ga. 65, 66-67 ( 656 SE2d 822) (2008); Chubbuck v. Lake, 281 Ga. 218, 219 ( 635 SE2d 764) (2006); Alexander v. Alexander, 279 Ga. 116, 117 ( 610 SE2d 48) (2005); Allen v. Allen, 260 Ga. 777, 778 ( 400 SE2d 15) (1991); Curry v. Curry, 260 Ga. 302, 303 ( 392 SE2d 879) (1990); Carr v. Kupfer, 250 Ga. 106, 107, n. 1 ( 296 SE2d 560) (1982); Scherer, 249 Ga. at 638-639; Reynolds v. Reynolds, 217 Ga. 234, 254-257 ( 123 SE2d 115) (1961); Birch v. Anthony, 109 Ga. 349, 350 ( 34 SE 561) (1899). In Scherer, we stated that,
Corbett v. Corbett, 280 Ga. at 370; Alexander v. Alexander, 279 Ga. at 117-118; Adams v. Adams, 278 Ga. at 622. See also Allen v. Allen, 260 Ga. 777, 778 ( 400 SE2d 15) (1991); Curry v. Curry, 260 Ga. 302, 303 ( 392 SE2d 879) (1990). To support his claim that Mallen created a "duty of inquiry," Mr. Blige relies on a single passage from Mallen quoting a New Jersey trial court's description in dicta of what California law regarding the enforceability of antenuptial agreements "appear[ed]" to be in 1986. It is worth noting that the DeLorean case has never once been relied on or even cited by any California appellate court in construing California law regarding the enforcement of antenuptial agreements.
Since this Court's adoption in Scherer v. Scherer, supra, of the factors to consider in determining the enforceability of prenuptial agreements, we have not had occasion to address directly the question of what changes in circumstance might render a prenuptial agreement unfair and unreasonable. However, in Curry v. Curry, 260 Ga. 302, 304 (3) (b) ( 392 SE2d 879) (1990), in considering a trial court's application of those same factors to uphold a reconciliation agreement, this Court found no error in the trial court's holding that there "has been no change in circumstances that [was] not foreseeable at the time that the agreement was entered into. . . ." That element of foreseeability has been recognized by other states as a key element in consideration of changed circumstances.
Appellant Husband maintains the trial court's pre-incorporation review of the settlement agreement was insufficient because the court did not make a finding that the agreement was conscionable. When faced with whether to enforce the terms of an antenuptial agreement ( Scherer v. Scherer, 249 Ga. 635 (3) ( 292 SE2d 662) (1982)) or a reconciliation agreement ( Curry v. Curry, 260 Ga. 302 (2) ( 392 SE2d 879) (1990)) in a subsequent divorce proceeding, the trial court is required to examine the agreement for unconscionability. We do not require application of that standard for agreements reached by the parties during divorce litigation; instead, we have left it within the discretion of the trial court whether such agreements should be incorporated, in whole or in part, in the final judgment and decree of divorce.
Thus, Wife herself invoked the ruling on the interpretation of the pre-nuptial agreement, and the trial court did not commit any procedural error in its ruling. Curry v. Curry, 260 Ga. 302 (1) ( 392 S.E.2d 879) (1990). 2.
] See also Curry v. Curry, 260 Ga. 302, 303 ( 392 S.E.2d 879) (1990): " Scherer specifies that the trial judge shall determine whether or not to enforce the agreement." Note that the holding of Cousins v. Cousins, 253 Ga. 30 ( 315 S.E.2d 420) (1984) (meaning and effect of settlement agreement determined according to usual rules for construction of contracts) is not contradictory to Scherer.
Other jurisdictions have recognized the validity of such contracts, called "reconciliation agreements," and have treated them in much the same way as antenuptial agreements. See, e.g., Curry v. Curry (1990), 260 Ga. App. 302, 303, 392 S.E.2d 879, 880 ("We know of no reason why a reconciliation agreement should stand on a different footing from an antenuptial agreement[.]"); Yeich v. Yeich (1990), 11 Va. App. 509, 399 S.E.2d 170; Gilley v. Gilley (1989), Tenn. App., 778 S.W.2d 862, 863 ("In our opinion, reconciliation agreements are in the nature of prenuptial or antenuptial agreements and should be generally governed by the same principles."); Stadther v. Stadther (1988), Ala. Civ. App., 526 So.2d 598; Hanner, supra; Patino v. Patino (1952), 303 N.Y. 999, 106 N.E.2d 276; Mann v. Mann (1946), 76 Cal.App.2d 32, 172 P.2d 369.