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My Fiancé wants me to sign a Texas Prenup. What should I do?

My office gets inquiries from people seeking a prenup or asking for our advice on signing one. Generally, people fall into two categories on the subject either they feel they are absolutely necessary or that they completely unromantic.

You may have been making wedding plans and thought you were well on the way to happily ever after when your fiancé started talking to you about prenup, this may have felt like a bucket of ice water. Isn’t there a line in wedding ceremony where they talk about “joining of two together as Husband and Wife?” Whatever happened to “what’s mine is yours?”

Something I have learned working as Texas divorce lawyer is that every relationship is different and marriage is about different things to different people. In some circles prenups are fairly standard and in others virtually unheard of.

Many of the people I consult with are often surprised to learn that there is more involved to prenups then just signing a document and being done with it. The truth is there is a lot of room for creativity in prenups this because they can be crafted and tailored to how you would like things to be handled during your relationship or after should the need arise. For the most part there are not a lot of limits on contract law beyond your creativity and the creativity of the drafter.

What is a Prenup?

A prenup is an abbreviated way of saying prenuptial agreement or premarital agreement. A prenuptial agreement, is a legal contract between two parties who intend to marry. Prenuptial agreements are usually used to set for a plan on how property would be divided should the parties divorce.

Many people believe that that prenuptial agreements are used protect a person’s assets from before they were married. Under Texas law, this property is known as separate property and already has a level of protection.

In Texas, separate property is:

  1. property that a person owned prior to marriage
  2. inherited
  3. gifts

This property does not become a marital asset just because you get married. If it started as separate, it stays separate as long as you can prove it is separate at the time of divorce.

What are some uses of a Prenuptial Agreement?

As mentioned above the most common use of a prenuptial agreement is to address how marital property will treated in the event of a divorce. In Texas, most often people get prenuptial agreements to deviate and control how Texas’ community property laws handle the division of their assets during a Texas divorce.

However, couples can use a prenuptial agreement in Texas to:

  1. Identify and preserve separate property that is owned prior to the marriage
  2. Protect a spouse from the debts of the other spouse
  3. How inheritance will be handles
  4. Current and Future Assets
  5. Current and Future Income
  6. Potential for future wealth
  7. Business Interest
  8. Financial Support of elderly parents
  9. Division of debts in a relationship
  10. Personal issues can also be addressed such as household duties, requiring sex weekly, or limiting how often sports games are watched on television.
  11. Address spousal support
  12. Some prenuptial agreements even address pet custody

A Texas divorce lawyer can provide you with some standard clauses to review. However, they will most likely find out more about you and your relationship so the final document can be tailored to fit your needs.

Limitations on what a Prenuptial Agreement Can Do

A prenuptial agreement is in many ways governed by contract law between two adults. This means they can do a lot of creative things. For the most part there are no limitations except for things that are:

  1. illegal
  2. unconscionable and
  3. against public policy
  4. cannot limit child support

Does getting a prenup mean that my fiancé doesn’t trust me?

As mentioned earlier every relationship is different. Just because your fiancé wants you to sign a premarital agreement does not mean they do not love and trust you. Many of our clients see it simply as a business discussion. Many people prior to marriage take a marriage class which helps you discuss and deal with your finances prior to marriage marriage. In many ways a premarital agreement does the same thing just on another level and puts a plan in place for both parties in case of eventualities that may occur in the future.

No one gets married with the expectation of divorce. Having a premarital agreement provides a couple the opportunity to create a plan of action of action on how to deal with finances:

  1. During the marriage and
  2. Should the couple divorce

Although many people think of a prenuptial agreement as only dealing with who gets what should they divorce a prenuptial agreement can also provide an outline or plan for finances during the marriage.

Something that can help in regards to the trust issue of signing a prenup is timing. If a prenup is sprung last minute a day or two from a wedding this can lead to real questions of trust. However, if the topic is introduced early on with a lot of time prior to the wedding this will allow more opportunity to discuss the contents of the agreement and allow for a more trusting approach to the process.

What are the requirements of a prenup?

The place to start when looking for requirements of a valid and enforceable prenuptial agreement is the Texas Family Code. The big requirements are that:

  1. It needs to be writing and
  2. Signed by both parties
  3. A premarital agreement must be signed prior to marriage
  4. Must disclose assets and liabilities
  5. Document entered voluntarily

In other words, an oral agreement is not sufficient. Some states require that the agreement be notarized. It will not hurt if is notarized and may help if you decide to move to a state with such a requirement.

Prenuptial agreement must be signed prior to marriage. If you do not, you and your spouse may still enter into agreement called a post-marital or postnuptial agreement which are similar. However, they do have a different set of rules and duties that must be accounted for.

Another big requirement is a disclosure to each other of your assets and liabilities. The idea behind this is that you are both entering the agreement with your eyes open and nothing is secret. There is a risk that if you fail to disclose assets are debts a court may later invalidate the agreement.

Technically this part of the agreement can be waived. However, that waiver must take place in a separate document. Sometimes parties will do both a disclosure and a waiver to cover their basis. One benefit of doing the disclosure it is very clear at the onset what the property of the parties is so there is no question at later date.

A family law attorney cannot represent both parties in preparing entering a prenuptial agreement. There is a conflict of interest. Each party would need to have independent attorneys.

The premarital agreement must be entered voluntarily. An agreement that was not voluntarily entered will be found void by a court upon a challenge to the premarital agreement either during a divorce or death.

What is the procedure for getting a prenup?

The process for getting a Texas premarital agreement involves:

  1. Discussing with your fiancé the purpose and general terms of the agreement
  2. Preparing a list of assets and liabilities of both parties
  3. One party will hire an attorney to prepare the draft agreement
  4. The other fiancé can then take that agreement to another attorney to review and provide advice on the terms of the agreement and suggest changes
  5. Then both parties will sign the agreement
  6. Once the document is signed each party and attorney will receive a copy of the agreement

Can I prepare my own prenuptial agreement?

The safest way to prepare a prenuptial agreement is with the with assistance of a lawyer. These documents are very involved and it is not uncommon for these documents to be prepared by two independent lawyers one for you and one for your fiancé.

It is not uncommon for premarital agreement to be later challenged in court. Having a lawyer represent you and your fiancé can help prevent:

  1. an argument that a party did not understand their legal rights or
  2. that certain paragraphs should be construed against the drafter
  3. make sure that the document is drafted in accordance with Texas law
  4. an attorney will help you know what is customary in a premarital agreement as well as help you come up with creative solutions to your problems
  5. There are formalities required in entering a premarital agreement. A lawyer will help you walk through those formalities.
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