Originally published by Evan Hochschild.
Agreements that marrying persons enter into before the marriage actually begins are enforceable by law under the Texas Family Code.
The requirements of a prenuptial agreement must be met, but so long as it does, the document:
- acts as a contract between the parties that
- will determine how their property is handled in the future should the marriage relationship end.
The basic requirements for a prenuptial agreement to be enforceable in Texas are that the document must:
- be in writing
- be signed by both parties
- both spouses disclosed assets and liabilities prior to signing the agreement and
- both spouses waived the right to further disclosure.
Challenging Prenuptial Agreements
If it comes to light that either party did not sign the agreement voluntarily or that one party signed without knowing the full breadth of the financial situation of either party then the agreement may be deemed unenforceable by a Court.
Determining the Rights to Property
Deciding what rights and responsibilities each party to the marriage will have to any piece of property is a definite positive aspect to signing a prenuptial agreement.
This is true no matter who bought the property, when it was bought or who currently owns it.
Why Sign a Prenuptial Agreement?
The reasons why parties may want to sign a prenuptial agreement are varied and many.
For starters, the distribution of property upon the death of one of the parties in order to avoid certain pieces of property going to a person’s spouse is one reason.
In this way, the prenuptial agreement acts as a de-facto estate planning document. Inherited income from a person’s family or other property the intent of which was to remain in that family’s control may not work out that way if that property becomes community property because of intermingling in the other spouse’s property as well.
The attorneys with the Law Office of Bryan Fagan also see clients who wish to enter into a prenuptial agreement in order to maintain the financial integrity of the marriage prior to the day that vows are actually exchanged.
For example, if one party to a marriage has a significant amount of debt but not all that much income it is sensible to utilize the protections offered under a prenuptial agreement in order to keep the spouse with no debt’s income separate.
The careful organization of assets, income and property is obviously a requirement for this to be a possibility. Those people that own a business can see benefit from signing a prenuptial agreement by shielding your business and any investors/partners you may have from having those interests become part of the community estate.
Prenuptial Agreements Cannot do Certain Things
A prenuptial agreement cannot do everything, however. Public policy or State law cannot be violated, obviously.
A prenuptial agreement cannot defraud creditors that are already in place either. Avoiding a lien or a creditor’s phone calls by making all of your separate property the property of your soon to be spouse is not something that a Court can enforce.
A prenuptial agreement can, however, be structured to make sure your spouse’s property from your creditors. Convincing a Court that you did not enter into the agreement voluntarily is a way to get out of the agreement but this can prove difficult.
The prototypical example of having a gun held to your head is applicable here. Unless a person can show a judge that something akin to this has occurred the document will most likely be held to be enforceable. Two adults that sign a document together typically means the document will not be overturned by a Court.
A less frequently considered benefit of entering into a prenuptial agreement is if either party has children from a prior marriage there is likely to be a child support obligation that is current. By signing a prenuptial agreement ensures a party that owes child support ensures that their assets are protected for their children in the even that something were to happen to them.
A marital property agreement, also known as a “post-nup” function very similarly to one another. The big differences are obviously when they are entered into (before the marriage vs. during the marriage).
Marital property agreements are also written as partition and exchanges between the parties. This means that spouses can either agree to split pieces of property into his and hers separate property, or they can agree to trade one piece of property for another.
The key part of a prenuptial agreement is to take property that would ordinarily be considered to be community under the law in Texas and make it the separate property of one spouse. Instead of having a marriage where some of the property is separate and some of it is community, parties that enter into a prenuptial agreement can actually make all property one or the other. In the event that a divorce is necessary, the process can be streamlined to a great extent. Whatever items are not covered by the prenuptial would have community property laws of our State applied as in most divorces.
To find out if a prenuptial agreement is right for you and your soon to be spouse, please contact the Houston divorce lawyers at the Law Office of Bryan Fagan. Our office has years of experience drafting agreements that stands to benefit both parties to a marriage and can help create a peace of mind for clients for years to come. A consultation with our office is free of charge and will be with a licensed, practicing family law attorney.
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Other Articles you may be interested in:
- Should I sign a Texas Premarital or Prenuptial Agreement?
- Common Questions about Texas Prenuptial and Marital Agreements
- Making Postnuptial Agreements Stick in a Texas Divorce
- Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
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Law Office of Bryan Fagan | Spring Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.
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