Postnuptial Agreement Attorneys, Houston TX
Most people have heard of prenuptial agreements. Usually, they are associated with celebrities or wealthy people. The reality is that these agreements are becoming more and more prevalent in today’s society. But most people do not realize you could achieve the same goals of a prenuptial agreement with a postnuptial agreement. These are contracts very similar to prenuptial agreements except they are executed after the parties get married.
What is a Postnuptial agreement?
According to the Texas Family Code, “the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. The partition or exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse.” This agreement will last throughout the marriage unless the parties modify it in writing, or cancel it altogether. Notice that this statute addresses only community property being converted into separate property, and not the other way around. Of course, the parties can agree to address issues of their separate property in a contract; however, it may be more difficult to enforce given that there is no law on point to deal with the matter.
Prenuptial versus Postnuptial Agreements
The primary difference is the timing of each agreement. Both agreements essentially determine how the marital property will be characterized and divided in the event the parties divorce. They also have the power to take care of property issues upon the death or disability of the parties. They can be helpful not only in protecting your property, but it also encourages the parties to frankly discuss their assets and liabilities, and what to do in the event the marriage breaks down.
In Texas, a post-marital agreement is technically called a partition agreement. This is because it divides the marital or community estate into two distinct, separate estates. This is a great option for parties who might accidentally commingled their separate assets, like an inheritance. A common example might be a home that one of the parties inherited, and they each decide to take out a mortgage on the home in order to finance the other party’s new business endeavor. Questions start to arise as to whether or not the loan is separate, or if the new business, with the investment coming from separate property, would be the other party’s property. A partition agreement can be limited in scope, addressing any confusion that might arise as a result of commingling.
Postnuptial or Partition Agreements versus a Marital Settlement Agreement
Partition agreements usually occur during the course of the marriage, but before any proceeding for divorce is contemplated. A marital settlement agreement, on the other hand, is what the parties draw up between themselves when they go through a divorce. Usually, settlement agreements are reached through a semi-formal process called mediation. The good thing about mediated settlement agreements is that they can address issues of child custody and support, unlike a partition agreement, which deals solely with property. The mediated settlement agreement (or MSA) is binding and not revocable. Once the parties sign off on this agreement, it will be formalized into a court order and cannot be changed.
Enforcement of Postnuptial Agreements
The enforceability of agreements made after the wedding is similar to that of prenuptial agreements. The agreement must be in writing and signed by both parties. There must also be disclosure of all assets and liabilities by both parties before the agreement is signed. The only way a partition and exchange agreement would not be enforced is if the party contesting it can demonstrate that they did not sign it voluntarily or they were not provided a fair and reasonable disclosure of the property or liabilities of the other party.
Getting Legal Representation for Your Case
A post-marital agreement should always be drafted with the assistance of an attorney. We have experience drafting partition and exchange agreements and mediated settlement agreements. Our firm is standing by to help you and your spouse negotiate any issues or matters of property that you are facing in your marriage.