Making Postnuptial Agreements Stick in a Texas Divorce

Originally published by Law Office of Bryan Fagan.

In an earlier blog post I discussed attacking the enforceability of a Prenuptial Agreement. In this blog article I will discuss Postnuptial Agreements and whether the formalities for a postnuptial agreement different then the formalities for a premarital agreement.

Brief Answer

In 2005 changes to 4.104 of the Family Code bring post-marital agreements explicitly in line with postnuptial agreements, which do not require consideration to be enforceable.

Requirements for a Postmarital Agreement Under Texas Law

A partition or exchange agreement under Section 4.102 or an agreement under Section 4.103 must be:

1.  in writing and signed by both parties.
2. Either agreement is enforceable without consideration.

Jury Instruction

A good place to start when making and executing a postmarital agreement is to consider what would happen should the case go to trial.

Should your spouse at some point in the future wish to attack the postmarital agreement during the Texas divorce process and the case go to trial an instruction would be put to the jury for them to consider regarding the validity of the agreement. That instruction would look like the following:

“At any time, spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as they may desire.  Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property.  A partition or exchange agreement must be in writing and signed by both parties.

A partition or exchange agreement is unenforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily.

A partition or exchange agreement is unenforceable if the party against whom enforcement is requested proves that, before execution of the agreement, that party —

1. was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and
2. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
3. did not have and reasonably could not have had adequate knowledge of the property or financial obligations of the other party.

QUESTION ___

Is the partition or exchange agreement between HUSBAND SMITH and WIFE SMITH unenforceable?

Answer “Yes” or “No.”

Answer:

Best Practices for Executing the Postmarital Agreement

The Jury instruction can serve as a mini road-map on what needs to be done to have a valid postmarital agreement.

1. It needs to be in writing
2. There needs to be a disclosure of the financial assets or a waiver of that disclosure before the agreement is signed.

My suggestion would be to do both. You should disclosure your assets and debts and get a waiver of that disclosure.

I would also suggest paying for your spouse to consult with an attorney regarding this agreement or alternatively for her to sign a separate document saying she does not wish to consult with an attorney.

Further Reading

1. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
2. Common Questions about Texas Prenuptial and Marital Agreements

Law Office of Bryan Fagan | HoustonTexas Divorce Lawyers

Discussing a postnuptial or marital agreement are one way to plan or protect yourself should your marriage not work out. The attorneys at The Law Office of Bryan Fagan are experienced at drafting and attacking postnuptial agreements.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 Houston Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston 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 Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers, Galveston, Brazoria, Fort Bend County and Waller County.

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