In my years of practicing family law, I have found that so much of the practice involves helping clients understand what reality is versus their perception of reality. For example, if you are like most people that I have spoken to about today’s blog post topic, you may believe that premarital agreements (or prenuptial agreements as they are commonly known) practically guarantees that a divorce will occur for whatever couples agree to one. After all- why sign an agreement that discussing dividing up property upon divorce if a divorce isn’t likely from the very start?
That is the widely held notion. In reality, premarital agreements are often times the smartest thing a couple can agree to prior to their marriage. It offers people peace of mind in order to be sure that they know how what will happen should a divorce occur. You are able to negotiate with a person who is about to enter into a marriage with you, instead of negotiating with a person who is eager to end your marriage. The atmosphere and stakes couldn’t be any more different. What’s more- I am not aware of anything that tells us that couples that agree to premarital agreements are any more likely to end up getting divorced.
Of course, what your personal circumstances are may vary somewhat with most people’s experiences regarding premarital agreements. With that said, let’s discuss this topic a little further in today’s blog post from the Law Office of Bryan Fagan, PLLC.
What a premarital agreement can be
A premarital agreement is not designed to be a one-stop shop for all your premarital needs. The agreement’s confines are specifically laid out in the Texas Family Code as far as what can and what cannot be included in the document.
You are able to detail the rights and obligations of you and your spouse to be for specific pieces of property- both personal and real property. This is regardless of when the property was acquired or where it is located. For instance, your or your spouse to be’s ability to sell or lease a piece of real estate can be covered by this document. Finally, how the property will be treated upon a future divorce can certainly be covered by a premarital agreement.
The key part of premarital agreements is that you and your spouse can choose how to designate a piece of property- as either community or separately owned. This can be a big deal because the law in Texas is that there is a presumption that all property owned by you and your spouse at the time of a divorce is considered to be community property. This means that if you intend to argue that a piece of property is your separate property you must ordinarily provide evidence to a court to prove this assertion of yours.
Under a premarital agreement, however, you and your spouse can set aside the laws of Texas and designate items as being either community or separate property based on your own wishes. This is a powerful tool available to you that otherwise would not be available to you in a courtroom. If your divorce case were to make it that far, a judge would be forced to apply the community property laws of Texas to your case.
On top of that, a premarital agreement can dictate the terms of how a piece of property is managed and controlled during your marriage and can specify whether or not spousal maintenance is to be paid after a divorce. When it comes to money and property these are some of the most highly contested subjects that couples encounter in a typical divorce and having them decided well in advance of the divorce can be a great way to help a divorce keep from getting bogged down if one has to be filed later on.
What doesn’t the law in Texas allow a premarital agreement to do?
A premarital agreement cannot contain anything that violates state criminal law or violates public policy. Importantly, you and your spouse cannot come to any sort of agreement on child support in a premarital agreement. As in, you cannot agree ahead of time that you and your spouse will not ask the other for child support- even if you have children that are already born.
The reason for this is that it is a judge’s responsibility to ensure that the best interests of your child are taken into consideration in any orders regarding support of that child. He or she will be fine with an amount of child support that you and your spouse agree to incident to a divorce but will not enforce a provision of your premarital agreement related to child support.
For example, you may have a child that requires around the clock medical attention due to physical impairment of some sort. As a result, the provision included in your premarital agreement that states no child support will be paid under any circumstances doesn’t seem to be in line with what is in your child’s best interests.
The top ways in which a premarital agreement can be determined to be unenforceable
Like any written contract, ideally, the document will be enforceable in court in the future should a divorce occur. If a judge cannot enforce the agreements made within the document then all the time, money and effort that went into negotiating and drafting the agreement was pointless and for naught.
A good question to ask yourself at this stage of your investigation into premarital agreements would be how can you and your spouse avoid putting yourself in that type of situation. Let’s go over the most likely reasons that I believe premarital agreements are determined to be unenforceable.
First of all, any agreement must be made voluntarily. As in, you and your spouse must both have shown a knowledge of the issues being agreed upon and a willingness to enter into the agreement. This means that you cannot have forced him or her to sign the agreement and vice versa. You also must not have fraudulently induced him or her to sign, or vice versa. If it can be shown that one of you relied on a promise made by your spouse and that promise turned out to be false then the contract will likely be determined to be unenforceable and not valid.
Secondly, your premarital agreement may be determined to be unenforceable if one of you are able to prove that it was unconscionable. This means that the agreement is so unfair, so one-sided that it cannot be enforced as a result. In reality, it is pretty difficult to prove this.
Years after signing the agreement if you argue that the agreement is invalid on grounds of unconscionability you would need to show more than that it is just favorable to your spouse. There is nothing necessarily unconscionable about that, per se.
The reality is that the failure to disclose pertinent information or that debts/assets/liabilities were hidden from you in negotiating the agreement is a necessity when arguing unconscionability. If both you and your spouse were represented by an attorney it becomes even more difficult to argue this point because once an attorney becomes involved it is presumed by most courts that the attorney representing you was reasonably prepared and capable of advising you in conjunction with whether or not to sign off on the agreement that you entered into.
Questions about premarital agreements? Contact the Law Office of Bryan Fagan, PLLC
At the end of the day, if you want to ensure that you protect your rights in the best manner possible and that you have entered into an enforceable premarital agreement it makes a lot of sense to hire an attorney who has worked with clients on these subjects before. The attorneys with the Law Office of Bryan Fagan, PLLC have the right combination of experience and knowledge of the law in order to best advise you in matters relating to premarital agreements.
To schedule a free of charge consultation with one of our licensed family law attorneys please do not hesitate to contact our office today.
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Law Office of Bryan Fagan, PLLC | Pre-nuptial Agreement Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Pre-nuptial Agreements, it's important to speak with a Kingwood, TX Pre-nuptial Agreement Lawyer right away to protect your rights.
A Pre-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.