Prenuptial and Postnuptial Agreements
When a couple marries, their separate property often becomes combined with their community property, which Texas law presumes all property acquired after the marriage to be. If separate and community property becomes commingled during a marriage, it can become difficult to distinguish the two in the event that the couple divorces. If you want to take extra steps to safeguard the property that matters the most to you, make the wise decision to have a prenuptial or postnuptial agreement in place. The experienced family law attorneys at Patrick D. West Law Firm can help you formulate and finalize such an agreement, even if you are already married.
Advantages of Prenuptial and Postnuptial Contracts
Having a prenuptial or postnuptial contract will help reduce the acrimony in the event of a divorce and help put your mind at ease, knowing that you have protected your assets. Under Texas law, a prenuptial agreement is required to be executed in writing by both the bride and bridegroom prior to the wedding. Most contracts require that something of value is exchanged between the parties (called “consideration” in legal language) in order for the contract to be legally binding. However, this is not the case with prenuptial agreements. However, the prenuptial agreement must be made with both parties being in anticipation of marriage, and they must act in good faith by disclosing all of their assets and liabilities.
If any party to the pre or postnuptial agreement has failed to fully disclose their assets and liabilities, the court may rule that the contract is null and void. Texas law provides that each party to a pre or postnuptial agreement is entitled to have full disclosure of the other’s financial posture. Additionally, these contracts may not be upheld by a court if it is found that a spouse did not sign of his or her free will, or if the contract has extremely offensive or unreasonable provisions. The parties should each retain their own attorney so that they can be properly counseled as to how the agreement will impact their individual interests.
Texas divorce law provides that all property acquired by the spouses during the marriage is automatically presumed to be community property. The court has the discretion to distribute community property according to a “just and right” benchmark. One advantage of a prenuptial agreement is that you are deciding before a divorce and even the wedding which property you want to have designated as separate property, and which will be taken out of the community property pool to be divided as a judge sees fit. Examples of property you might want to designate as separate could include your wages, income, business assets, intellectual property, retirement benefits, and so on.
However, under Texas law, there are certain provisions which may not be included in pre or post-nuptial agreements, including those limiting child support. Child support is a right that the parents are not entitled to contract away, as it is the child’s right. It is the law and the best interests of the child that determine the proper amount of child support, not the personal needs and negotiations between the parents. Similarly, child custody may not be decided by a pre or post-nuptial agreement.
A postnuptial agreement is similar to a prenuptial agreement, only it is executed after a wedding rather than before. Spouses may decide to enter such agreements for many reasons, including but not limited to financial liabilities belonging to one spouse but not the other, or because one spouse has new business assets they want to protect. Just as with a prenuptial agreement, the spouses are not required to exchange consideration in order for the contract to be valid, but the contract must be in writing.
And also as with a prenuptial agreement, a postnuptial agreement must be entered into freely and voluntarily by both parties, and be devoid of unreasonable or outrageous provisions. Such agreements may also be deemed void if a spouse fraudulently misrepresented their assets or liabilities.
Let the Family Law Attorneys at the Patrick D. West Law Firm Help You Set a Pre or Post Nuptial Agreement In Place
No matter how blissful your relationship may seem at the moment, life happens and things can change unexpectedly. Additionally, if you have a pre or post-nuptial agreement in place, this can actually help preserve your marriage, because it will give both of you peace of mind. Call the experienced attorneys at the Patrick D. West Law Firm at (817) 332-2600 or contact us via our online form to set up an appointment if you need assistance with a prenuptial agreement, a postnuptial agreement, or assistance with another type of family law matter.