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Should I sign a Texas Premarital or Prenuptial Agreement?

This week I have written blogs on attacking the enforceability of prenuptial Agreements and on postnuptial agreements. As promised in those blogs I am going to discuss whether or not a non-moneyed fiancé should sign a premarital or prenuptial agreement.

Should I sign?

Advising a non-property spouse in a premarital or marital property agreement is an experience that requires strength, determination and a lack of tact. My first advice to you must be – “Don’t do it!”

However, if you want to move forward with some sort of agreement, I believe first step would be to create and begin circulating your own draft agreement generally the one that is often proposed by a fiancé with property is usually very one sided and does not provide for the other parties’ benefit.

What if my fiancé says they will put me in their will?

I have had more than one consult with a potential client where they told me “my fiancé has mentioned that they might include them in a will.” such promises are unenforceable and at a minimum should be defined in the premarital agreement which is a contract and would then be enforceable.

The Marriage is a Partnership

Any agreement you sign should include statements that reflect that the parties intend for the marriage relationship to be a partnership. For Example:

“The parties are entering into this marital relationship with the understanding that HUSBAND recognizes that WIFE has a larger estate then he does at the time of the marriage. It is also understood that this is a marital partnership and the community should benefit from the time, toil, and efforts of the parties with the exception that neither party makes any claim to the other party’s separate property or natural increases to that separate property. It is our intention to recognize and share the good and bad together, personally and financially, that may occur during the course of our marriage.”

Such a statement sets the tone for the negotiations and moves the parties towards an agreement that, while recognizing the separate property of a spouse at the time of the marriage, envisions the creation of a community estate during the marriage for your benefit.

Confirming Separate Property

The, most favorable type of agreement for you would be one that only confirms each parties’ separate property and creates a community estate. Agreements that propose the avoidance and the creation of a community estate should be avoided or reworked to provide the spouse without property some reasonable benefit.

Possible Sections to Include in a Prenuptial Agreement

  1. Earnings of BRIDE To Constitute Community Property

The parties hereby agree that all personal service earnings or incomes which are the product of BRIDE’s labor, employment, or occupation shall be and constitute the community property of the parties.

  1. Earnings of GROOM To Constitute Community Property

The parties hereby agree that all personal service earnings or incomes which are the product of GROOM’s labor, employment, or occupation shall be and constitute the community property of the parties.

  1. Future Property Owned by the Parties
    1. Jointly Owned Property. The parties hereby agree that during marriage, we may from time to time, by mutual agreement, have the opportunity to acquire jointly owned property, either as jointly owned separate property or as community property
    2. Joint Credit Purchase. The parties hereby agree that if property is acquired by both our credit and is taken in both of our names, and if we both sign our names to the document creating the liability, we shall own such property as community property, unless we both declare in writing that we are holding the property as separate property, in which event any such property will be owned by each of us equally as equal separate property.
    3. Joint Accounts for Household Expenses. It is anticipated that during our marriage we may create one or more accounts in financial institutions in joint names in which we may put our own personal service earnings and for which either party will have the right to withdraw for ordinary and customary living expenses. The parties hereby agree that any funds in this account will be owned by us as community property.
    4. Personal Property. Notwithstanding anything herein to the contrary, it is agreed that all personal clothing, jewelry, sporting goods, and items of adornment will be the separate property of the person who ordinarily uses or enjoys such property without regard to the source of the funds used to acquire such property.

Most of the time there is room for improvement in premarital agreement to protect the fiancé with out property. I usually advise that it would be in your best interest to create and begin circulating a draft premarital agreement that address the above. Doing so minimizes future conflicts, better defines expectations, and resolves ambiguities.

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Other Articles you may be interested in:

  1. My Fiancé wants me to sign a Texas Prenup. What should I do?
  2. Common Questions about Texas Prenuptial and Marital Agreements
  3. Making Postnuptial Agreements Stick in a Texas Divorce
  4. Attacking the Enforceability of a Premarital Agreement in a Texas Divorce
  5. Dower Contracts and a Texas Divorce
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  12. Prenuptial agreements can be voided in Texas

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