Marital Agreements Under Texas Family Law

There are two kinds of marital agreements under Texas Family Law, premarital agreements (also known as prenuptial agreements or “prenups”) and marital property agreements (often called postnuptial agreements or also partition or exchange agreements).

Why enter into a marital agreement?

Marital Agreements are provided for in Texas Family Law to help structure and manage the assets of the two parties joining in marriage. This is a sensitive issue for many people. “If you are so in love, why detract from the happiness by dwelling on money and legalities?”

Many couples, including some who stayed married, are glad they took the time to define these issues. Marital agreements help to protect your assets you acquired before marriage; minimize the cost of a divorce proceeding; reduce anxiety; and ensure that your beneficiaries receive their intended inheritance. These agreements can also address issues that might arise in the event your marriage is terminated by either your or your spouse’s death.

Premarital agreements

A premarital agreement, often referred to as a prenuptial agreement or a “prenup,” is a way to protect assets and remove uncertainty, in the event of a divorce or the death of you or your spouse.

Building an estate takes a great deal of time and effort. Texas Family Law provides a way for you to protect that estate in the event of divorce or death. There may be others depending on you for their support. This is a way for you to be assured they are cared for after your death. In the event that your new marriage should end it divorce, this is a way to avoid many of the uncertainties that may arise in family law litigation.

These are questions that will arise sooner or later in a marriage and a premarital agreement can help you

  • clarify your agreements and expectations about assets (or separate property) that each party brings into the marriage,
  • define your estate planning,
  • protect partnership or business assets where only one of you is involved,
  • potentially protect against creditors,
  • minimize the cost of a divorce proceeding should that occur, and
  • ensure that your beneficiaries receive their intended inheritances.

While a premarital agreement can address certain issues pertaining to children of the parties, a provision that adversely affects a child is unenforceable in Texas. Any such provision must be in the best interest of the child and that is a decision for a judge or jury.

Premarital agreements for a second marriage

Couples entering into a second marriage almost always have certain issues that should be clarified, such as

  • separate property assets acquired in the previous marriage, and
  • property rights of children from an earlier marriage.

Marital property agreements

Marital Property Agreements, often referred to as a postmarital or postnuptial agreement or also may be termed a partition or exchange agreement, are a way for you and your spouse to protect your assets after marriage by changing their character as community or separate property. It also provides a way to convert separate property into community property if your wish is to further merge with your life partner.

There are many reasons why a couple may decide to redefine the division of their assets:

  • Updates to a premarital agreement
  • Division of debts taken on in the marriage
  • Clarifying what is separate property and what is community property
  • Providing a trust fund for a child with special needs
  • How community property is to be distributed

These are issues that cause anxiety and can lead to costly litigation in divorce or after one or both of the parties dies. Similar to an insurance policy, the insured hopes they’ll never file a claim, but they are relieved that it is in place if necessary.

Requirements of a Postnuptial Agreement in Texas

In order to be valid, postnuptial agreements in Texas must comply with the following requirements:

  • Be in writing
  • Signed by both parties
  • Legal capacity by both parties at the time of signing
  • Voluntary agreement
  • Full disclosure of all assets or the waiver of full disclosure in writing
  • Informed agreement by both parties, acknowledging rights they are granting and waiving

It is extremely important for each party to have their own attorney, especially if one spouse has fewer assets, and the agreement should be notarized. If both parties are represented by an attorney the agreement is that much stronger and less subject to attack in subsequent litigation such as a divorce.

In Texas, a postnuptial agreement cannot decide any issues about child custody and visitation or child support.

Validity and non-enforceability of a marital (postnuptial) agreement

If a marital agreement is done carefully with all the rules followed, it is very difficult for a party to the agreement to come back later and have it set aside. However, there are instances where a marital agreement can be invalidated. If it can be proven that a party did not enter into the marital agreement voluntarily, then the agreement may be set aside.

Some factors that a court may consider in making such a determination are

  1. a party committed fraud in getting the other party to enter into the agreement and
  2. a party was under duress or undue influence at the time of the making of the agreement.

Texas Family Law provides an exclusive list of issues that may be used in an effort to determine that a marital agreement is not enforceable against a party because it is unconscionable. In determining what is unconscionable, a party must prove

  1. the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party (i.e. a party tried to hide assets),
  2. did not voluntarily (see the discussion of voluntariness above) and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and
  3. did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party. As said before, if a party is not represented by an attorney, that may open the door for that party to attack the agreement at a later date.

For more information about marital property agreements, please read our Blog, “Characterizing property in a divorce settlement – community versus separate property.”

Specialized legal counsel for your protection

Contact Chris Spofford to learn about your options in the area of marital agreements and how he can help you with your choices. The State of Texas provides protection for you and Chris can help you defend your rights.

He has represented individuals on Family Law cases in the greater Houston area continuously since he was admitted to the Texas State Bar in 1986.

He is Board Certified and has represented both the person with the greater assets on how to protect those assets as well as the one with fewer assets to be sure that they are treated fairly. Whatever your situation, Chris will guide you with insight and knowledge and defend your rights aggressively.

Marriage Finances

Marital Agreements are provided for in Texas Family Law to help structure and manage the assets of the two parties joining in marriage.

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