Making Postnuptial Agreements Stick in a Texas Divorce

Making Postnuptial Agreements Stick in a Texas Divorce

In an earlier blog post I discussed attacking the enforceability of a Prenuptial Agreement. In this blog article, I will discuss divorce vs. Postnuptial Agreements and whether the formalities for a postnuptial agreement different then the formalities for a premarital agreement.

Requirements for a Postmarital Agreement Under Texas Law

In 2005, changes to 4.104 of the Family Code bring post-marital agreements explicitly in line with postnuptial agreements, which do not require consideration to be enforceable.

A partition or exchange agreement under Section 4.102 or an agreement under Section 4.103 must be:

  1. in writing and signed by both parties.
  2. Either agreement is enforceable without consideration.

Jury Instruction

A good place to start when making and executing a postmarital agreement is to consider what would happen should the case go to trial.

Should your spouse at some point in the future wish to attack the postmarital agreement during the Texas divorce process and the case go to trial an instruction would be put to the jury for them to consider regarding the validity of the agreement. That instruction would look like the following:

At any time, spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as they may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. A partition or exchange agreement must be in writing and signed by both parties.

A partition or exchange agreement is unenforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily.

A partition or exchange agreement is unenforceable if the party against whom enforcement is requested proves that, before execution of the agreement, that party —

  1. was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and
  2. did not voluntarily 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 and reasonably could not have had adequate knowledge of the property or financial obligations of the other party.


Is the partition or exchange agreement between HUSBAND SMITH and WIFE SMITH unenforceable?

Answer “Yes” or “No.”


Best Practices for Executing the Postmarital Agreement

Making Postnuptial Agreements Stick in a Texas Divorce

The Jury instruction can serve as a mini road-map on what needs to be done to have a valid postmarital agreement.

  1. It needs to be in writing
  2. There needs to be a disclosure of the financial assets or a waiver of that disclosure before the agreement is signed.

My suggestion would be to do both. You should disclosure your assets and debts and get a waiver of that disclosure.

I would also suggest paying for your spouse to consult with an attorney regarding this agreement or alternatively for her to sign a separate document saying she does not wish to consult with an attorney.

Impact of Postnuptial Agreements on Asset Division and Child Custody

Postnuptial agreements are crucial in Texas divorces, dealing with property and child custody. These agreements outline asset and debt division after marriage. They provide a clear roadmap, reducing uncertainty and conflict in divorces.

Asset Division

In Texas, a community property state, property acquired during marriage is typically considered joint. It’s equally divided in a divorce. A postnuptial agreement can change this standard division. Couples can decide on a different, though fair, asset division. For example, one might keep more retirement funds, the other the family home. This approach leads to amicable settlements and quicker divorce resolutions.

Indirect Impact on Child Custody

Postnuptial agreements mainly address finances, not child custody. However, they can indirectly influence custody decisions. An agreement can provide stability for a child, affecting custody considerations. Texas courts prioritize a child’s best interest in custody, apart from financial agreements.

Future Considerations

Postnuptial agreement dynamics may change with evolving laws and norms. Texas family law is evolving, impacting future agreements.

Making Postnuptial Agreements Stick in a Texas Divorce

Texas laws might adapt to new marital agreement issues, like digital assets. Postnuptial agreements will need more detail and foresight.

Social Norms

Changing views on marriage and divorce influence postnuptial agreements. They’re increasingly seen as financial planning tools, not just for asset protection.

With the rise of digital assets and online financial tools, privacy and asset protection become more complex. Future postnuptial agreements might include clauses about digital asset division and privacy protection.

Increased Awareness and Acceptance

More people are learning about postnuptial agreement benefits. Their use is growing, leading to more open financial discussions among couples.

Postnuptial agreements in Texas greatly affect asset division and child custody in divorce. Changing laws and norms will expand their scope. They will become key in marital and financial planning.

Final Thoughts

In conclusion, postnuptial agreements are vital in Texas divorces. They provide clear guidelines for asset division and offer fairness. These agreements indirectly impact child custody by influencing financial stability. As family dynamics and laws change, their importance in marital planning grows. They are becoming key tools for financial and marital harmony. For Texas couples, understanding these agreements is crucial.


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  1. Should I sign a Texas Premarital or Prenuptial Agreement?
  2. Common Questions about Texas Prenuptial and Marital Agreements
  3. My Fiancé wants me to sign a Texas Prenup. What should I do?
  4. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
  5. Dower Contracts and a Texas Divorce
  6. Can I sue my spouse’s mistress in Texas?
  7. When is, Cheating Considered Adultery in a Texas Divorce?
  8. 6 things You Need to Know Before You File for Divorce in Texas
  9. Texas Divorce Morality Clause: Be Careful What You Ask For
  10. What does Insupportability or No-Fault in a Texas Divorce Mean?
  11. Frequently Asked Questions Regarding Texas Marriage
  12. Prenuptial agreements can be voided in Texas
  13. Amendments, Revocations & Postmarital Agreements
  14. Here is how you write a great post-nuptial agreement in Texas


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