Texas Prenuptial Agreements: What can and what cannot go into one

At first glance, it may seem like the last thing you want to do as you prepare to marry someone is to discuss a premarital or prenuptial agreement. When you contemplate drafting such an agreement it seems like you are already contemplating a divorce, or at least admitting to yourself and your spouse to be that it is a possibility. Nothing snuffs out the romance of wedding preparations quite like visiting an attorney and discussing what will happen with your property and debts in the event of a divorce.

However, if you own a family business or other entity and wish to keep the income and property associated with that business separate from your community estate then you will likely want to at least give a prenuptial agreement some thought. A prenuptial agreement is a great way to protect items that would otherwise be subject to division in a divorce. How to first discuss that subject with your spouse to be is an important topic in and of itself.

Starting the conversation with your spouse about a prenuptial agreement

I think that it goes without saying that a prenuptial agreement is a touchy and delicate subject to raise with your spouse to be. It is something that is becoming more widely discussed in our society but it is rarely done in a positive light. You can turn the feeling that a prenuptial agreement is a bad thing around by noting that in Texas we have laws in place that will affect how property and debts are divided upon divorce via our community property statutes. This means that like it or not the State will determine how your community estate is divided, whether you like it or not. A prenuptial agreement simply provides you and your spouse an opportunity carve out your own solution.

Nearly every married couple argues about money. How to spend it, how to save it and a whole array of subjects in between. Money fights can lead to divorce and often do. From my experience as a family law attorney, I would say that money and infidelity lead to more disagreements and talk of divorce than all other subjects combined. So, raising the issue or property and income division early in your engaged life can helpful avoid disagreements on the subject down the line.

Make sure that if you wish to discuss a premarital agreement with your fiancé that you do so openly and honestly. The whole purpose of negotiating, drafting and signing a premarital agreement is to have taken the entirety of your lives from a financial perspective into account. If you purposefully fail to share information with your spouse, or vice versa, then you defeat the purpose of the premarital agreement. You are also planting the seeds of dishonesty and suspicious behavior early in your relationship. If both you and your spouse feel like each of you has an opportunity to be protected in the agreement then your chances of having a premarital agreement implemented goes up dramatically.

What cannot be discussed in a premarital agreement

A premarital agreement has limits to what it can include. The remainder of today’s blog will delve into this subject in greater depth.

I think it probably goes without saying that your premarital agreement cannot contract for anything that would be considered illegal. If you attempt to insert language or provisions into your premarital agreement that demands you or your spouse do anything illegal, or if you are shielding assets or debts in an illegal fashion it is certain that those provisions will be void and the entirety of the agreement could be in jeopardy as well.

Perhaps most importantly a premarital agreement in Texas cannot pre-determine issues related to child support or child custody. First and foremost, a family law court will determine an amount of child support for you to either pay or receive should you and your spouse not be able to negotiate this subject on your own during divorce proceedings. The fact remains that child support is determined based on what is in the best interests of your child, not on the ability of the child’s parents to negotiate on that subject in advance of the child’s birth.

A good example of this is that you and your spouse cannot know what special needs, if any, your child will have once he or she is born. If your child requires special and consistent medical attention then limiting the amount of child support your spouse will be responsible for in the event of a divorce will do a disservice to you and more importantly will do a disservice to your child. There are dozens of factors that a court can weigh to determine the proper level of child support. All of those factors require that a child be actually born in order to assess the child’s specific needs.

Additionally, if you and your spouse to be contract for a specific possession schedule for a child yet to be born then that will be struck from your agreement as well. The reason is that it is the public policy of this state to encourage parents and children to have lasting relationships, but it is not the policy of this state to allow unfit parents to do so. There is no way to predict the future. If you later are determined to be a parent who should have limited or no access to your child then it would make no sense for a court to allow provisions contained in a years old premarital agreement to still be in place.

Interesting in a premarital agreement with your fiancé? Contact the Law Office of Bryan Fagan

The decision to negotiate a premarital agreement is not one that comes easily to most people, but it can be an incredibly appropriate and responsible step to take. If you have any questions on this subject please do not hesitate to contact the Law Office of Bryan Fagan today. One of our licensed family law attorneys can meet with you in a free of charge consultation to answer questions of any sort on this subject.


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