PRE/POST NUPTIAL AGREEMENTS

PRENUPTIAL AGREEMENT / POSTNUPTIAL AGREEMENT

Print Friendly

Although no one marries with the intent to divorce, you may want to consider protecting your assets in the event your marriage is later dissolved.

In Texas, the law allows for you and your significant other to characterize your assets into separate or community estates – as you so desire. This may be accomplished through a Prenuptial Agreement or a Postnuptial Agreement. As long as these agreements do not violate any laws, and are entered into freely with complete knowledge of the full scope of each estate, the division of assets as it has been agreed to will remain in effect throughout the marriage and divorce, and will be enforceable.

THE TYPES OF AGREEMENT

PRENUPTIAL AGREEMENT

A prenuptial agreement—also known as a “prenup,” a premarital agreement or an antenuptial agreement—is entered into prior marriage.

POSTNUPTIAL AGREEMENT

A post nuptial agreement is signed after a couple has married, and is also referred to as a partition agreement, or a postmarital agreement.

WHAT CAN I DIVIDE WITH A PRENUP OR POSTNUPTIAL AGREEMENT?

Essentially, you may characterize any and all of your assets as community or separate, as you so choose. For example, if you have stocks, made investments, own a business or rental properties, you may classify those assets, along with any interests or income gained during the marriage, as your separate property.

HOW CAN I BENEFIT FROM A PRENUP OR POSTNUPTIAL AGREEMENT?

As discussed, these documents safeguard your assets. But they may also have other beneficial purposes. A prenuptial or postnuptial agreement allows you the right to:

  • control the distribution of your property upon your death (i.e. you may designate that any interest or income earned from your separate property investments during your marriage (considered community property) be gifted to your child of a different relationship or to another person.);

  • protect your income from creditors if your spouse or soon-to-be-spouse has a lot of debt;

  • convert separate property into community property;

  • include provisions for spousal support or contractual alimony in the event of divorce (i.e. requiring one spouse to pay a certain amount of contractual alimony for committing adultery or for filing for divorce without attending marital counseling.);

  • establish higher child support payments, than would otherwise be ordered by the court; and/or

  • decide issues pertaining to the children, including conservatorship and possession and access.

     

IS THERE ANYTHING I CAN NOT INCLUDE IN A PRENUP OR POSTNUPTIAL AGREEMENT?

There are a few things you will not be able to include in your prenuptial or postnuptial agreement. Under the Texas Family Code, your agreement can not include provisions that:

  • requires one spouse to commit an illegal act in order to receive certain property;

  • violates the law;

  • attempts to defraud creditors by giving your spouse or soon-to-be-spouse all of your separate property, to be considered that spouse’s separate property, as to interfere with a creditors ability to collect on the debt you owe;

  • eliminates the child support obligation or reduces the amount of child support that would be due under the Texas Child Support Guidelines; and/or

  • establishes conservatorship rights and/or possession and access to the child that the court finds is not in the best interest of that child.

IS MY PRENUP / POSTNUPTIAL AGREEMENT ENFORCEABLE?

A prenuptial or postnuptial agreement will not serve your purpose if it is not drafted properly or does not comply with the Texas Family Code. In addition, to ensure this document is enforceable:

  • both spouses or soon-to-be spouses must fully disclose all of their assets and liabilities to the other spouse or soon-to-be spouse;

  • both spouses or soon-to-be spouses have waived the right to further disclosure;

  • it must be in written form; and

  • it must be signed by both spouses or soon-to-be spouses.

A prenuptial or postnuptial agreement will be invalid if:
  • either spouse signed under duress or force;

  • either spouse was not provided full disclosure of the other spouse’s assets and liabilities; and/or

  • the agreement to waive disclosure of assets and liabilities above those already made aware of is not in writing.

HOW IS A PRENUP OR POSTNUPTIAL AGREEMENT DIFFERENT FROM A DIVORCE?

In Texas, any property acquired prior to the marriage, by gift, or inheritance, is considered separate property (if so proven to be separate). However, any income or interests earned from separate property, during the marriage, may be considered community property and subject to “just and right division.” See Division of Property and Debts for an overview of how a community estate may be divided during a Texas divorce.

PRENUPTIAL / POSTNUPTIAL AGREEMENT

The information provided above is only a brief overview of Prenuptial / Postnuptial Agreements, and is not to be considered legal advice. Obtain a lawyer that is well-equipped and has extensive knowledge in this area to ensure that your prenuptial / postnuptial agreement is in the best interest of all parties, and enforceable. Call the Law Office of Nancy E. Lusk at 281-242-2700 or click the button below to send Nancy E. Lusk a message.