In popular culture and perhaps even in this blog-space, pre-nuptial agreements are discussed with much more regularity than are post-nuptial agreements. Pre-nuptial agreements are unsurprisingly contracts that parties enter before they marry one another.
A pre-nups are voluntarily entered into agreements that dictate how certain pieces of property will be disposed of and divided should the parties divorce or one party dies A premarital agreement does not go into effect until the parties to the contract become married.
A postnuptial agreement is a contract entered by spouses after they have married one another. It becomes enforceable and goes into effect immediately after each spouse signs the document. Why do people enter into these sorts of agreements?
What are the benefits of a post nuptial agreement and how can the parties to one make the agreements stick? The family law attorneys with the Law Office of Bryan Fagan, PLLC would like to take this opportunity to discuss this issue with you all today.
Background information on post-nuptial agreements
Texas is a community property State. What this means in the context of a divorce is that all property that the spouses acquire during the marriage is presumed to be community property.
In many but not all circumstances that means upon the divorce of the parties the property would be split 50/50 in most instances unless circumstances are in play that require another sort of division to occur.
What spouses can do in entering into a post nuptial agreement is certain pieces of property can be divided off from the community estate thus making it the separate property of one spouse or the other. An example of this as it pertains to debt is one spouse can take on the full load of his or her debt that he or she entered the marriage with, shielding the other spouse from this liability.
Again, community property law dictates that property is presumed to be shared by the parties and the same can be said for debt, no matter whose debt it is.
For many married people, their needs change during a marriage
Over the course of a marriage, your financial status may change a significant amount. While fights regarding money don’t always lead to divorce, money issues are a significant cause of divorce in North America.
It doesn’t have to be only suspicious or nefarious behavior that can cause financial trouble and ultimately relationship trouble for spouses. For example, some families have a special needs child or adult who requires care over and above what the person him or herself, social security or other insurance can provide.
If you or your spouse are in a position where a commitment has been made to support a person with special needs, it may be a good idea to draft up a post nuptial agreement that takes this reality into consideration.
It can be agreed upon that income that would ordinarily be considered community income be partitioned into the separate estate of the spouse who has agreed to pay the bills and general expenses of the special needs family member.
Your spouse is protected from liability down the line if you end up committing more to this person than you are actually able to.
How to best ensure the enforceability of your post nuptial agreement?
Post nuptial agreements must be:
- in writing and
- signed by both spouses
Oral contracts are tough to enforce in any context and post nuptial agreements are no exception. Texas law stipulates that a party to the post nuptial agreement may challenge its validity and enforceability by asserting that they either:
- did not sign the agreement or
- that it was not signed involuntarily
For example, if you can prove that your spouse was threatening you with bodily harm if you did not agree to sign the post nuptial agreement then you may have a case that the agreement is not enforceable.
The other main way that a post nuptial agreement may be declared void is that if the agreement is so one sided as to be wholly unconscionable in being enforced.
This would mean that if the agreement, for example, gives all property to one spouse and all debts to the other, then it’s likely that the agreement will not be enforced by a court.
Additionally, if one spouse was holding back information that would have led to a material change in the documents content and character then the enforceability of the document would be severely in question.
How can you avoid a situation where your carefully crafted postnuptial agreement is declared void and not enforceable? The best advice that I can provide to you in this space is to fully disclose your financial assets and debts prior to entering into negotiations over a postnuptial agreement.
If you look at things from a judge’s perspective he or she will analyze your post nuptial agreement in any divorce case by making sure both parties did disclose their personal financial statuses (assets and debts).
If it comes to light that you or your spouse did not have a reasonable opportunity to review the finances of the other spouse then an agreement may not be enforceable.
Is it wrong to plan for life as a divorced person if you are still married?
In a word, no, it is not wrong to plan ahead to determine what will happen if you and your spouse do decide to move one from one another. If you have special considerations to make plans for then a post nuptial agreement makes sense.
Planning ahead and taking the worry out of any discussions about your life and your property is a responsible decision to make, especially if you own a substantial amount of property.
Finally, agreeing to how an estate would be divided up should the marriage end is a reasonable thing to do since there is not as much emotion getting embroiled in the situation as there would be during the middle of a divorce.
Post Nuptial Attorneys for Southeast Texas: The Law Office of Bryan Fagan, PLLC
If you have a question regarding post nuptial agreements or anything else in the field of family law please do not hesitate to contact the attorneys with the Law Office of Bryan Fagan, PLLC. A consultation with one of our licensed family law attorneys is always free of charge.
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Law Office of Bryan Fagan, PLLC | Post-nuptial Agreement Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Post-nuptial Agreements, it's important to speak with a Kingwood, TX Post-nuptial Agreement Lawyer right away to protect your rights.
A Post-nuptial Agreement Lawyerin Kingwood TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.
