There may be a less romantic topic to discuss with your spouse than a prenuptial agreement. Nothing says "love" quite like a contract between yourself and another person where your property is divided up in anticipation of a future divorce. The same can be said of a postnuptial agreement, the difference being that you are contracting with your spouse after your marriage has already begun. With that said, prenuptial and postnuptial agreements can be highly effective in protecting yourself and your spouse. Today's blog post from the Law Office of Bryan Fagan, PLLC, will discuss this subject in detail.
Marriage is a commitment and is a contract under the law.
The fact of the matter is that marriage is considered a contract between you and your spouse. The Texas Family Code defines what a marriage is in Texas and dictates the terms of that agreement. However, a prenuptial or postnuptial agreement allows you and your spouse to sidestep many of our State's laws on the subject of marriage and allows you all to inject your own rules into place. These agreements will enable you to modify and alter the contract that the State of Texas, in essence, forces you to agree to upon marrying your spouse.
Premarital agreements are agreed to before your marriage begins. Postmarital arrangements are agreed to after your wedding has already started. If you and your spouse want to have a more significant amount of control over where your property goes if your marriage were to end in divorce, then entering into either of these kinds of agreements is a good idea. The primary focus of either type is on property division but can touch on several different subjects.
Texas is a community property state.
You may be aware that Texas is a community property state. This means that all property (real property, personal property, and other assets) acquired during your marriage is presumed to be owned by both you and your spouse. It does not matter whose name is on the title of the property. It does not matter whose name the bank account is in. If your checking account has only your name and your income entering into it but contains income from a job you worked during your marriage, the funds within that account are community property.
If you and your spouse were to get a divorce, then the property characterized as community property would be subject to a just and right division by the judge. While and right may indicate to you that a 50/50 split is appropriate, a judge can consider circumstances and divide up the property in any proportion that she believes is appropriate.
The benefit of agreeing to a prenuptial or postnuptial agreement with your spouse is that you all can create that proportion and designate certain pieces of property as belonging to either you or your spouse. For instance, if you are a doctor, lawyer, or a member of any other profession where being sued is expected, you can protect your spouse by declaring the specific property to be their separate property. Thus, those pieces of property would not be subject to any judgment won by a party who has filed suit against you.
Must a prenuptial or postnuptial agreement divide up your property 50/50?
The simple answer is that prenuptial and postnuptial agreements do not have to be straight 50/50 splits of the property you and your spouse own. However, other requirements need to be in place for a contract to be valid.
First and foremost, an agreement must be in writing with both parties represented by attorneys. It must be clear that both parties had an opportunity to review the proposed agreement and that neither side signed off on the contract under fraud or coercion. The parties must also disclose all information available to them regarding the status of their property ownership rights. Finally, the agreement must not be so one-sided as to be unconscionable.
If the agreement is later challenged by the spouse who believes it to be unconscionable, a judge will decide whether or not the deal is immoral to the point where it is not enforceable or valid. The consensus that I can relay to you all reading this blog post is that unconscionability cannot be so one-sided that no reasonable person could believe that it was entered voluntarily after the opportunity for negotiation.
Factors that a judge will consider in weighing whether or not an agreement is unconscionable
Your age and the age of your spouse will be considered by a judge when deciding whether to uphold the validity of a prenuptial or postnuptial agreement. For instance, if you are relatively young and your spouse is pretty old, then a court may be less apt to declare as enforceable a rather one-sided agreement that favors your spouse.
Another factor that courts consider that may not come to find for you immediately is the age of your children. If you seek to protect your wealth so that your children can receive a certain amount after your passing, then that will be looked at by a judge.
Details on postnuptial agreements
Prenuptial agreements get all the headlines, but postnuptial arrangements can be just as effective in allocating property effectively. Postnuptial agreements are typically entered into after you and your spouse have encountered a difficult time. The terms of the postnuptial agreement are supposed to put you and your spouse at ease by removing from discussion whatever property is being argued over.
A partition and exchange of your community estate are possible under a postnuptial agreement. This could mean that you and your spouse could agree that income from certain pieces of the income-generating property could be one of your separate properties. Keep in mind that a postnuptial agreement does not need to be approved by a judge to be valid and enforceable.
Using a postnuptial agreement to alter or modify a prenuptial agreement
Imagine a situation where your relationship with your spouse has significantly changed since your marriage began. This could be for any number of reasons. Still, the critical thing to keep in mind for our purposes today is that something is different about your relationship now compared to your relationship in the past. A postnuptial agreement allows you and your spouse to keep up with those changes in the best way possible.
A final word of prenuptial and postnuptial agreements
The bottom line is that prenuptial and postnuptial agreements allow spouses to sidestep the law in Texas when possible and instead operate off of their own mutually agreed to division of property. This results in more autonomy, greater control, and a more extraordinary degree of flexibility than you would ordinarily allow.
I would not approach this subject from a defensive position. Just because you and your spouse or your spouse have begun talking about agreements that contemplate death or divorce does not mean that you do not love each other or have affection for one another. On the contrary, you may understand that because of your family dynamics, there may be problems with how your property will be characterized upon death or divorce, and you seek to take that decision out of a judge's hands. Nobody knows your family as well as you and your spouse do.
Be sure to meet with and have an attorney review any agreement before signing it. For maximum benefit, you may want to hire an attorney to help you negotiate the terms of your agreement and ensure that all portions of the agreement are enforceable.
Unfaithful spouse in your life? Tomorrow's blog post is for you
Come back to the blog for the Law Office of Bryan Fagan, PLLC, to learn more about this subject. A consultation with one of our licensed family law attorneys is always free of charge. We proudly represent people like you- our neighbors here in southeast Texas.