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What are the limitations of a premarital agreement in Texas?

A premarital agreementis a contract between you and your spouse that is signed off on before the two of you tie the knot. The most common reason why you may want to sign a prenuptial agreement before taking the plunge into marriage would be to avoid any fights in regards to splitting up property, bank accounts, and other financially related assets in the event of a divorce.

It is not common to have persons in their first marriage enter into premarital agreements but for people with significant assets heading into a second marriage, I would say they are more frequently utilized.

How can you create a premarital agreement that a court will honor?

Of course, like anything else in Texas Family Law, there are requirements that your prenuptial agreement must meet. That is to say that there are limits to what can be agreed to or contracted for with your agreement. For a premarital agreement to be validated by a court both you and your future spouse:

  • Must be both represented by counsel at the time of the document’s being negotiated and agreed upon
  • Must both be aware of your rights in regard to dividing up property as defined by the Texas Family Code
  • Knew of your rights and entered into the agreement freely and voluntarily
  • Both disclosed what your income was at the time of the agreement

Benefits of a Premarital Agreement

If you have ever been in a relationship then you know that being able to communicate well with your partner is probably the most important aspect of a strong relationship. If you can talk through your problems you are able to come to solutions that benefit each of you.

Problem-solving in one area likely means that you can problem solve in a whole array of other areas of your life. If you are having issues with money, then getting on a budget is a great way to problem solve that area and begin to work together.

Coming together to agree to a premarital agreement is no different. Money problems and the inability to communicate with your spouse about them frequently leads to problems that end up in divorce court. By laying out all of your finances with your spouse, and he or she does the same with you, there will be no mystery about where each of you stands as you enter into marriage.

Likewise, there will be no mystery as to what will happen with your finances should a divorce occur. This knowledge should stop any attempts to act dishonestly or put money ahead of love and commitment (at least in theory).

Risks of a Premarital Agreement

On the other hand, discussing a premarital agreement can instill in both you and your spouse the idea that not only do both of you understand that a divorce is an option for your relationship, but it is a very real one at that. Generations ago, people considered divorce to be abhorrent and sinful.

It was something to be avoided at all costs and in most instances was absent extreme circumstances. As a result, people did not immediately think about divorcing a spouse if a problem arose regarding money or any other contentious subject.

It may be worthwhile to assess whether or not your future spouse is the type of person who will be receptive to your idea to consider signing a prenuptial agreement. While we have listed and discussed some of the strongest selling points of a prenuptial agreement, there are some people who are just not comfortable or willing to discuss the possibility of signing one. You should gauge whether or not you are in a relationship with someone that likely is or is not willing to discuss this subject.

Unfortunately, in considering whether or not your partner is willing to do so you may be unknowingly opening a can of worms that could doom your relationship. By this I mean- do you want to be married to a person that you cannot discuss any and every important subject that is related to your relationship.

While a premarital agreement is not for everyone, if you believe it is important then it is certainly worth a discussion in my opinion. Your partner’s inability or unwillingness to discuss even the idea of a premarital agreement can be a signal of some deep-seated problems that may arise in your relationship down the line.

What a premarital agreement can not include

Property considerations are just fine to agree to within a premarital agreement, but issues like child custody and child support are not. A family court judge will ultimately make rulings regarding those subjects- either as a result of a trial or by confirming the agreements that you and your spouse came to in a settlement negotiation.

For instance, on the subject of child support, the Texas Family Code has guideline amounts of support that a court can defer to when assigning child support responsibilities. If you all choose to deviate from that in a divorce that is fine as long as there is a justification.

However, to do so in a premarital agreement- where a court would not be involved- is inappropriate and would not be held up in a court should you and your spouse eventually get a divorce. Just as with any other area that a court determines to be inappropriate or unwarranted, sections of your prenuptial agreement may not be honored by a future family law court.

Questions about premarital agreements? Contact the Law Office of Bryan Fagan, PLLC

Premarital agreements can be beneficial to your future marriage and if you and your spouse agree that the subject is worth considering then the first step would be for you both to speak to an attorney. The Law Office of Bryan Fagan, PLLC stands ready to assist you in providing quality representation in the area of premarital agreements. A consultation with one of our licensed family law attorneys is free of charge. Please do not hesitate to contact us today to discuss this or any other subject in the field of family law.


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Other Articles you may be interested in:

  1. Prenuptial Agreements in Texas
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are 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 Houston, Texas, Cypress, 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.

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