Originally published by The Law Office of Bryan Fagan, PLLC Blog.
In my years of practicing
family law, I have found that so much of the practice involves helping clients understand
what reality is versus their perception of reality. For example, if you
are like most people that I have spoken to about today’s blog post
topic, you may believe that
premarital agreements (or prenuptial agreements as they are commonly known) are practically
guarantees that a divorce will occur for whatever couples agree to one.
After all- why sign an agreement that discussing dividing up property
upon a divorce if a
divorce isn’t likely from the very start?
That is the widely held notion. In reality, premarital agreements are often
times the smartest thing a couple can agree to prior to their marriage.
It offers people peace of mind in order to be sure that they know how
what will happen should a divorce occur. You are able to negotiate with
a person who is about to enter into a marriage with you, instead of negotiating
with a person who is eager to end your marriage. The atmosphere and stakes
couldn’t be any more different. What’s more- I am not aware
of anything that tells us that couples that agree to premarital agreements
are any more likely to end up getting divorced.
Of course, what your personal circumstances are may vary somewhat with
most people’s experiences regarding premarital agreements. With
that said, let’s discuss this topic a little further in today’s
blog post from the
Law Office of Bryan Fagan, PLLC.
What a premarital agreement can be
A premarital agreement is not designed to be a one stop shop for all your
premarital needs. The agreement’s confines are specifically laid
out in the Texas Family Code as far as what can and what cannot be included
in the document.
You are able to detail the rights and obligations of you and your spouse
to be for specific pieces of property- both personal and real property.
This is regardless of when the property was acquired or where it is located.
For instance, your or your spouse to be’s ability to sell or lease
a piece of real estate can be covered by this document. Finally, how the
property will be treated upon a future divorce can certainly be covered
by a premarital agreement.
The key part of premarital agreements is that you and your spouse can choose
how to designate a piece of property- as either community or separately
owned. This can be a big deal because the law in Texas is that there is
a presumption that all property owned by you and your spouse at the time
of a divorce is considered to be community property. This means that if
you intend to argue that a piece of property is your
separate property you must ordinarily provide evidence to a court to prove this assertion of yours.
Under a premarital agreement, however, you and your spouse can set aside
the laws of Texas and designate items as being either community or separate
property based on your own wishes. This is a powerful tool available to
you that otherwise would not be available to you in a courtroom. If your
divorce case were to make it that far, a judge would be forced to apply
the community property laws of Texas to your case.
On top of that, a premarital agreement can dictate the terms of how a piece
of property is managed and controlled during your marriage and can specify
whether or not spousal maintenance is to be paid after a divorce. When
it comes to money and property these are some of the most highly contested
subjects that couples encounter in a typical divorce and having them decided
well in advance of the divorce can be a great way to help a divorce keep
from getting bogged down if one has to be filed later on.
What doesn’t the law in Texas allow a premarital agreement to do?
A premarital agreement cannot contain anything that violates state criminal
law or violates public policy. Importantly, you and your spouse cannot
come to any sort of agreement on child support in a premarital agreement.
As in, you cannot agree ahead of time that you and your spouse will not
ask the other for child support- even if you have children that are already born.
The reason for this is that it is a judge’s responsibility to ensure
that the best interests of your child are taken into consideration in
any orders regarding support of that child. He or she will be fine with
an amount of child support that you and your spouse agree to incident
to a divorce but will not enforce a provision of your premarital agreement
related to child support. For example, you may have a child that requires
around the clock medical attention due to a physical impairment of some
sort. As a result, the provision included in your premarital agreement
that states no child support will be paid under any circumstances doesn’t
seem to be in line with what are in your child’s best interests.
The top ways in which a premarital agreement can be determined to be unenforceable
Like any written contract, ideally the document will be enforceable in
court in the future should a divorce occur. If a judge cannot enforce
the agreements made within the document then all the time, money and effort
that went into negotiating and drafting the agreement was pointless and
for naught.
A good question to ask yourself at this stage of your investigation into
premarital agreements would be how can you and your spouse avoid putting
yourself in that type of situation. Let’s go over the most likely
reasons that I believe premarital agreements are determined to be unenforceable.
First of all, any agreement must be made voluntarily. As in, you and your
spouse must both have shown a knowledge of the issues being agreed upon
and a willingness to enter into the agreement. This means that you cannot
have forced him or her to sign the agreement and vice versa. You also
must not have fraudulently induced him or her to sign, or vice versa.
If it can be shown that one of you relied on a promise made by your spouse
and that promise turned out to be false then the contract will likely
be determined to be unenforceable and not valid.
Secondly, your premarital agreement may be determined to be unenforceable
if one of you are able to prove that it was unconscionable. This means
that the agreement is so unfair, so one-sided that it cannot be enforced
as a result. In reality, it is pretty difficult to prove this. Years after
signing the agreement if you argue that the agreement is invalid on grounds
of unconscionability you would need to show more than that it is just
favorable to your spouse. There is nothing necessarily unconscionable
about that, per se.
The reality is that the failure to disclose pertinent information or that
debts/assets/liabilities were hidden from you in negotiating the agreement
is a necessity when arguing unconscionability. If both you and your spouse
were represented by an attorney it becomes even more difficult to argue
this point because once an attorney becomes involved it is presumed by
most courts that the attorney representing you was reasonably prepared
and capable of advising you in conjunction with whether or not to sign
off on the agreement that you entered into.
Questions about premarital agreements? Contact the Law Office of Bryan Fagan, PLLC
At the end of the day, if you want to ensure that you protect your rights
in the best manner possible and that you have entered into an enforceable
premarital agreement it makes a lot of sense to hire an attorney who has
worked with clients on these subjects before. The attorneys with the
Law Office of Bryan Fagan, PLLC have the right combination of experience and knowledge of the law in order
to best advise you in matters relating to premarital agreements.
To schedule a free of charge consultation with one of our licensed family
law attorneys please do not hesitate to
contact our office today.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://bit.ly/31mJ3Vy
via Abogado Aly Website
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