Prenuptial Agreement Attorneys, Houston TX
Prenuptial agreements are a relatively new presence in Texas family law. Although they have been around for a while, they have been used with more frequency in the past decade or so. Couples are delaying marriage, often to the point where they have established lucrative careers or acquired a decent amount of property on their own. Perhaps one spouse is earning significantly more than the other spouse at the time of the marriage, or one spouse has incurred a lot of debt. In those cases, it is often a practical exercise to create a prenuptial agreement that determines how their property will be characterized and divided in the event of a divorce.
What is a prenuptial agreement?
This is a contract between the two parties which is executed prior to the marriage. It lays out whether or not property acquired during the marriage will be considered community or separate property. It also determines how any property bought by the parties before the marriage will be owned. In most cases, it covers the potential division of retirement, real properties, and other assets in the marriage if the parties divorce.
Income is automatically considered to be community property in the default statutes – but a prenuptial agreement can change this and characterize all income from separate property or separate labor is not part of the community estate. It also can contemplate the ability of either party to request spousal support. Prenuptial agreements can discuss parenting roles; however, the provisions determining custody or child support will not be binding in a court of law. The court will always consider the best interest of the child over and above a private, contractual agreement.
These agreements can also contain provisions that require the payment of attorney’s fees, especially if one party challenges the viability of the agreement and loses. Parties can be quite creative when it comes to prenuptial agreements, although there are limitations to what it can accomplish.
Why consider a prenuptial agreement?
Often, going through the prenuptial agreement negotiation is a helpful process for the parties. It forces them to sit down, declare their assets and liabilities, and help them sort out what is important to them when it comes to the financial health of their relationship. Essentially, it ensures that both parties have clear expectations about their marriage and potential divorce.
Prenuptial agreements can also lay out the desired distribution of property on death. If you have certain family property that you inherited, you might want to keep it in your own family line, rather than it going to your spouse or their children in the event of your death during the marriage.
What can a prenuptial agreement not do?
One major thing parties should know is that a premarital agreement cannot waive a future spouse’s benefit under an ERISA-protected plan, like a 401k. The spouses must reaffirm any waiver of these retirement benefits after the date of marriage in order for these provisions to be enforced. It also cannot be used to defraud creditors, like transferring all the property you own into your spouse’s separate property in order to avoid foreclosure. Of course, it also cannot require anything unconscionable or illegal.
Requirements of a prenuptial agreement
In order for a prenuptial agreement to be enforced in the state of Texas, it must be in writing and signed by both parties. There must have been a full disclosure by both spouses of assets and liabilities prior to either of them executing the agreement. They must also waive the right to any further disclosure by the other party. There are only two methods by which a spouse can challenge the enforceability of the contract as a whole: the agreement was signed involuntarily; or the agreement was unconscionable at the time the agreement was signed, and the spouse challenging the agreement did not get a fair and reasonable disclosure of the property of the other spouse, did not voluntarily waive the right to disclose the assets, and did not have or could not have had adequate knowledge of the assets and liabilities of their future spouse. In other words, they were either forced to sign the agreement, or their future spouse tried to hide assets or debts from them.
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It is highly recommended that both spouses obtain the services and advice of an attorney prior to signing a prenuptial agreement.