Prenuptial and Postnuptial Agreements in Texas
WHY SHOULD I CONSIDER SIGNING A PRENUPTIAL AGREEMENT?
Prenuptial agreements are signed contracts between two people who are entering into marriage, and these agreements outline the rights and obligations of each party in the event of a divorce. A prenuptial agreement can include the right to buy, sell use, transfer, exchange, abandon, mortgage or otherwise manage and control property, including community property, as well as dictate the modification or elimination of spousal maintenance in the event of divorce. While these agreements may be considered unromantic, we have observed them to be more and more commonplace in our community.
The benefits and burdens of a prenuptial agreement (pre-nup) are numerous. If you are wealthier than your prospective spouse, you may want to consider a prenuptial agreement as a form of protection. Many individuals entering into their second marriage are well aware of the realities of divorce.
Often clients ask us if they should sign a “pre-nup”. Our response usually depends on their answer to the following question: Are you willing to walk away? Simply because a spouse is asking for a prenuputial agreement doesn’t mean that he isn’t in love and doesn’t want the marriage to last. Contrary to common belief, statistics show that marriages with prenuptial agreements are no more likely to divorce than other marriages. There is a lot of advantage to making sure that issues are resolved beforehand.
On the other hand, if the pre-nup essentially invalidates the role of spouse. mother and wife and leaves the party penniless and unable to reap the benefits of her support and activities during the marriage, then it should not be agreed to and either re-negotiated or refused.
ELEMENTS OF A PRENUPTIAL AGREEMENT
A prenuptial agreement is a contract, so the law of contract formation will apply. However, some provisions are against public policy and express provisions of the Family Code, and cannot be enforced. For instance, prenups cannot create or extinguish the obligation to pay child support. A prenup, like all contracts, are negotiable prior to execution. When a client comes to us with a prenup question, we almost always winding up negotiating better terms for our client.
Contracts between spouses do not have to occur prior to marriage. Agreements can be made between spouses to divide some or all of the property and debts of the spouses in the event of divorce. These agreements can also specify the limits and character of the assets and debts acquired in the future. These agreements, also known as partition agreements, are increasingly popular inTexas. We have seen situations where these agreements prevented a divorce. For instance, some spouses don’t want to have to worry about business related debts or risks.
In order for a prenup or a postnup agreement to be valid in Texas, it must be in writing and signed by both parties, but there are numerous other requirements that need to be considered. It is always best to have an experienced family attorney negotiate and draft one of these agreements. The last thing a client wants is for the prenup or postnup to be questioned by a judge because it is unconscionable or in violation of the statute of frauds.
PROTECTING YOUR RIGHTS
In order for these agreements to be legally sound, they should contain terms and conditions that are fair to both spouses and include a full disclosure of assets and finances. A potential spouse cannot be handed a prenup at the church steps and forced to sign without some time to consider the decision. A party may challenge the terms of a prenuptial or postnuptial agreement by proving that he signed it through fraud or under duress. The spouse seeking the prenup can’t “hide the ball”.
To learn more about how to create one of these agreements and how to obtain the maximum protection available under the law, contact a skilled family attorney at our firm today!