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Common Questions about Texas Prenuptial and Marital Agreements

Many couples entering into marriage are concerned about maintaining and protecting their property. At the Law Office of Bryan Fagan, PLLC, we are dedicated to helping engaged and married individuals reach their goals.

Houston Prenuptial Agreement Attorneys

Our Texas Family Law Attorneys are here to answer your questions and help you reach your financial goals. If you are located in the greater Houston area, including Harris County, Montgomery County, Fort Bend County, Grimes County, Waller County, and Washington County, and you are concerned with protecting your assets during your marriage, contact the Law Office of Bryan Fagan, PLLC today.

What is Community Property, and how is it Texas property law different from most other states?

Texas property law is very different from the laws of most other states. Texas property law follows a community property system. This system identifies most of the property brought into the marriage by either spouse as community property, belonging the marriage, and not the spouse who “owns” the property.

Property belonging to the marriage is called Community Property. Property belonging to an individual spouse is called that spouse’s separate property. Separate property includes:

  1. Any property owned by the spouse before marriage
  2. Property that spouse acquired during the marriage by means of gift, devise, or descent
  3. Any personal injury awards awarded to the spouse during the marriage

Any property that is not separate property is community property. This includes each spouse’s wages.

Why Enter into a Marital Agreement?

Entering into a premarital or marital agreement often has a stigma attached to it. However, there are plenty of very good reasons why one or both spouses might want to enter into a marital agreement. A marital agreement can protect a spouse who is entering into the marriage with far fewer assets than their partner, just as it can protect someone with far greater wealth than their spouse. These agreements can protect a partner who plans to quit their job to raise a family, or protect one spouse’s small business. Our attorneys are ready to listen to your specific concerns and draft an agreement that is right for your family and circumstances.

Entering into a marital agreement is in no way a sign of bad faith or a selfish act. In many situations, entering into a premarital or marital agreement is the wisest decision for both spouses.

What can a couple agree to in a prenuptial agreement?

An engaged couple may enter in an agreement regarding how their property will be identified during the marriage, and how it will be divided up in the event of divorce or the death of a spouse. The agreement must be in writing and signed by both parties. It becomes effective when the couple is married.

The agreement may contain any of the following provisions:

  1. Each spouse’s salary and wages shall be that spouse’s separate property: Normally, each spouse’s salary is identified as community property. The couple can agree that each spouse will retain his or her wages as separate property.
  2. Income from separate property is separate: Normally, any income from separate property is identified as community property. For example, if one spouse owns some land before the marriage, the land itself is separate property. However, any income that land produces during the marriage – for example, from a renter living on the land-- is community property. The couple can agree that the income from separate property remains separate.
  3. Waiver of homestead rights and exempt personal property set aside: Texas law provides that at the death of one spouse, the other spouse will retain important rights to the family homestead and a certain amount of personal property. The engaged couple can agree to waive those rights. Our Houston Family Law Attorneys understand these rights, and can help explain them to you during your consultation.
  4. Waiver of Spousal Support: The couple can agree to modify or eliminate either spouse’s obligation to provide spousal support.
  5. Disposition of Property at Divorce/Death: The couple can agree how property will be distributed when the marriage ends. This may include an agreement to make a will or purchase life insurance.
  6. Any other provision not against public policy: The couple can make any other agreement they want to in their premarital agreement, as long as their agreements are not in violation of law or public policy.

What can’t a couple agree to in a prenuptial agreement?

Texas law permits engaged couples to make many important decisions regarding their property before they are wed, but there are some things you cannot legally agree to in a prenuptial agreement. For example:

  1. You cannot agree to convert separate property to community property in a premarital agreement. You may agree to convert separate property to community property in a marital agreement, once you are wed.
  2. You cannot agree to limit child support obligations.

What can a couple agree to in a postmarital agreement, and how does that differ from prenuptial agreements?

Married couples can also make agreements regarding their property. A marital agreement may include any of the provisions included in a premarital agreement. However, a married couple may also agree to convert separate property into community property. For example, you may decide that the car the husband purchased before the couple was married (otherwise his separate property) is community property. This agreement is called a “Conversion Agreement.”

Marital agreements have some limitations as well. A marital agreement cannot include a provision that a party filing for divorce waives his or her interest in the couple’s community property. Normally, community property is divided up by the court during a divorce proceeding. An agreement that the spouse who filed for divorce does not get any of the community property is void.

Marital agreements terminate upon divorce. If you get remarried, you will need to execute a new agreement. Your old agreement will no longer be enforceable.

Are there options for unmarried couples living together to create contracts similar to marital agreements?

Unwed couples, with no intention to get married, still may require protection of their assets. Agreements between people who live together are called “palimony” agreements, or are sometimes called “cohabitation agreements” or “cohabs”. They are recognized whether the couple is heterosexual or homosexual.

In order to be enforceable, palimony agreements must be in writing and signed.

Palimony agreements might include important terms like who will have to move out if the relationship ends, how bills and expenses will be split during the relationship, or who gets custody of a shared pet.

How do you revoke a marital agreement?

Many people think that you can revoke or nullify a marital agreement simply by tearing it up. That is not true. You must draft a formal, written revocation and both parties must sign it. Our attorneys are ready to help you decide whether to revoke your agreement, and to assist you in doing so.

How can you prove (or disprove) a premarital or marital agreement in court?

A premarital or marital agreement will not be enforceable if it was not signed voluntarily.

A premarital or marital agreement will also be found to be unenforceable if it was “unconscionable” when it was created AND the following three-point test can be met:

  1. The spouse challenging the agreement can show that the other spouse did not disclose their property/finances.
  2. The spouse challenging the agreement can show that he did waive the disclosure in writing.
  3. The spouse challenging the agreement can show that he did not have, and could not have, knowledge of the other spouse’s property/finances.

It can be very difficult to meet this test and have an agreement deemed unenforceable. Simply showing that the agreement was unfair towards one spouse is not enough. Our attorneys understand the legal intricacies of this test and can help you decide if you can meet the burden.

What are some resources I can use to talk to my spouse about a marital agreement?

The right to enter into Prenuptial and Marital Agreements is set out in the Texas Family Code, beginning with Section 4.001. These sections are known as the “Texas Prenuptial Agreement Act.”

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