Originally published by The Law Office of Bryan Fagan, PLLC Blog.
What sort of benefits and disadvantages may be inherent for you and your spouse when it comes to signing a premarital agreement? That is probably the most common question that I am asked by a person when he or she is either considering a premarital agreement or has been asked by their spouse-to-be to sign a premarital agreement. Whether you are the person who fits the bill as the “wealthy” one or you are the spouse who is the “less wealthy” one, you should consider both vantage points when deciding whether or not a premarital agreement is right for you.
Taking the vantage point of the less wealthy spouse- Why sign a premarital agreement?
Consider a situation where you as the less wealthy spouse agree to the terms of a premarital agreement that entitles you to less in terms of property and spousal support that you would be able to garner under the divorce laws of Texas. Would it ever make sense to agree to something like this?
Many people want to know what to expect should a divorce occur. If you are one of these people then you may have peace of mind as a result of signing this agreement. Peace of mind has an intangible value to it that a price cannot be attached to necessarily. While you may want to go ahead and sign an agreement like this it is always best to hire an attorney to help you make a decision.
On the other hand, as the less wealthy spouse you are basically waiving your right to put your circumstances in front of a judge to have him or her determine what is appropriate given those circumstances and the laws of the State of Texas. Texas is a community property state that is seen as giving the spouse with less wealth, less work experience and things of that nature a greater share of the martial income and wealth than would be possible in other states.
The enforceability of a premarital agreement
For starters, let’s take a look at what makes a premarital agreement enforceable. Ultimately the agreement is not worth the paper that it is written on unless you can use it to ensure that what was previously agreed to will actually occur in real life. One of the real reasons that contracts and agreements such as these are followed by both parties is that there will be consequences for their failure to execute on their end of the bargain. Sure- most people are hones, honorable and willing to do what they said they would. There are those that will only do as they promised if there are ramifications for their future misdeeds.
A premarital agreement should be in writing. You and your fiancé making oral promises to one another is not going to suffice in Texas. Once your agreements are put into writing you both should sign the document. In order so that the agreement is binding and enforceable there must be a perfect exchange of information. This means that you and your spouse must disclose all pertinent and relevant information regarding your financial and property related statuses to one another. Both you and your fiancé deserve to know what you are agreeing to. If it comes out later that you did not tell him or her about something important it may render the entire agreement invalid.
Another important point I want to make is that you or your finance cannot unduly influence the other to agreement to the contract using fraud or duress. This should go without saying. Pressuring the other with threats- I won’t marry you unless you sign this- will put the agreement in a precarious position as far as enforceability is concerned. Fraud comes in if we consider a situation where you fail to disclose a substantial amount of personal wealth in order to have your fiancé agree to a low amount of future spousal maintenance then you have acted fraudulently.
When is the ideal time to sign the premarital agreement?
While I can’t tell you the absolute most ideal time to sign an agreement, I would be of the opinion that doing so well before the wedding day is advisable. The reason being is that it is better in most cases to negotiate and sign at an early date because it shows that you both did so in good faith and allowed one another plenty of time to challenge the agreement before tying the knot. Suppose that your wealthy fiancé presented you with a pre-drafted premarital agreement on the day before your wedding. If you sign it you may have not been able to consider all the ramifications of doing so. If you later challenge the document’s enforceability a court would likely be more apt to believe that you did not enter into it with enough knowledge to have the document be valid.
Should you hire a lawyer when negotiating and reviewing a premarital agreement?
It is not required that you and your fiancé both have an attorney for the premarital agreement to be valid, but it is always something that I advise folks to do. For starters, if both you and your fiancé have your own attorneys during the negotiation process it just about wipes out the “fraud/duress” argument as to the invalidity of the agreement. Having experienced and independent counsel negates your being able to argue that you were unaware of something related to the contract.
What about child support/child custody issues? Can those be accounted for in a premarital agreement?
Not in Texas, no they cannot. A court can take into consideration what you and your spouse agreed to in your premarital agreement but it does not have to be followed or relied upon in any specific way. While a court has no problem with you and your spouse bargaining in regard to property and money, the lives and well beings of your future children are a different story altogether. There may be future circumstances that arise in regard to your children that make the agreements you came to untenable or not in the best interests of your children.
Suppose that you and your spouse agree to a certain amount ofchild support based on how many children you have. Suppose further that one of your children were born with a disability that necessitated an amount of monthly child support that was significantly greater than the amount agreed to in the premarital agreement. Would it be fair to you or your child to go by the agreement reached years before their birth? I would argue that, no, it would not be fair. A judge makes any decision regarding children based on what is best for each child. It’s for this reason that any agreements regarding your children in your premarital agreement would be looked at as being guiding language at best.
What is expected of you and your spouse in marriage? Tomorrow’s blog post topic from the Law Office of Bryan Fagan, PLLC
If you are interested in the duties that you owed to your spouse (and vice versa) once married then tomorrow’s blog post topic should be one of that is of interest to you. We will walk through this topic and provide you with some tidbits that you probably do not know about marriage in the State of Texas.
In the meantime, if you have any questions about marriage, premarital agreements and any other subject in family law please do not hesitate to contact the attorneys with the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week where we can discuss your case in a comfortable, private setting. Thank you for your time and we hope you will join us tomorrow here on our blog.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://bit.ly/2Dy1r2B
via Abogado Aly Website
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