When it comes to premarital agreements, I think that many people get the wrong idea about what these agreements typically entail and how they can benefit you and your fiancé. Like many things, a prenuptial agreement has gained notoriety in our culture due to movies and television shows taking an interest in the topic and then stretching the benefits and circumstances surrounding the negotiation of the documents. The negotiation of a prenuptial agreement is many times a very straightforward process. However, the media would have you believe that every person who attempts to create one of these contracts is either greedy, money-hungry, or both.
Of course, creating scenarios like this where characters in a television show or movie attempt to act as treacherously as possible make for great entertainment. However, these types of situations are typically far from the truth. From my experience, most people who go through the negotiation of a premarital agreement are typically well-meaning and only interested in avoiding future conflicts while allowing their marriage to get off on the right foot.
As with anything in the world of Texas family law, the success of your free marital property agreement depends in large part on the planning that she will put into the process. If you and your fiancé hire attorneys in a stark moment decision and then attempt to work out an agreement with one another without first negotiating or getting your ducks in line, then you will almost surely run into problems. Even the most experienced family law attorneys would not be able to help you compensate for the lack of time spent preparing to draft one of these typically complex agreements.
On the other hand, drafting a premarital agreement can be straightforward once you and your fiancé have established the terms and worked through any other relevant issues in your relationship. If there is a big difference between your levels of wealth or if one of you wants to protect the other from a sizable amount of debt, then a premarital agreement may be something worth looking into for you all. Financial considerations or what a pre-marital property agreement gets into. Issues related to children are largely left out of a pre-marital property agreement.
What does a pre-marital property agreement allow you to do?
Premarital property agreements are useful documents that allow you and your fiancé 2 state any property owned by either of you or to change if that is your wish, the nature of how the property is classified. For instance, if you want to leave certain pieces of property in your separate estate that will be acquired during your marriage, then you can state that in your pre-marital property agreement. Things like alimony, special maintenance, and determining how property will be managed during the marriage can all be sorted out in a premarital property agreement.
One of the great things about pre-marital property agreements in Texas is that few formalities are associated with the document. As such, a pre-marital property agreement must only be in writing and signed by both you and your fiancé. That’s it. Even though the pre-marital property agreement is essentially a contract, no consideration is necessary; it is enforceable as long as these two agreements are meant. You and your fiancé wouldn’t even need attorneys to draft inside the document, but as with anything related to family law have experienced family law attorneys to guide you can be accommodating.
A pre-marital property agreement is also a very flexible document in terms of what it can cover. As many different couples as there are in our state, there can be just as many different types of pre-marital property agreements that can be created. Of course, a pre-marital property agreement cannot violate Texas civil or criminal laws or attempt to get out of paying future child support. Additionally, when it comes to the handling of debts within a pre-marital property agreement, it cannot be found that one of these documents or its terms would be an attempt to evade responsibilities owed to a creditor.
The vast majority of the information in premarital agreements relates to the right to buy, sell, transfer, use, or consume property. I realize that this is a vast generalization that I am applying to pre-marital property agreements but keep in mind that the circumstances in your relationship are so facts specific that we would be here all day if we wanted to discuss even a handful of specific circumstances in greater detail. If there are concerns over how assets are debts are handled in your relationship, then those issues can be dealt with in a pre-marital property agreement.
I will note that a child’s right to getting future child support cannot be impacted negatively by a premarital agreement. As a result, if you or your fiancé attempt to eliminate or reduce either person’s responsibility to pay child support in the future, then that provision would be unenforceable. However, the duty to pay tuition for private school or University costs can be determined to be enforceable if the agreement in and of itself does not violate public policy and is in the future child’s best interest.
This was a basic, introductory bit of information for you if you have never considered or been made aware of what a pre-marital property agreement can encompass. As I alluded to just a moment ago, if your circumstances have you wondering whether or not a premarital agreement could be of assistance to you and your fiancé, then you all should contact the law office of Brian Fagan today. Our licensed family law attorneys are experienced in helping people in your position determine whether or not a pre-marital property agreement can be of assistance.
You and your fiancé should have separate attorneys when drafting a premarital agreement
the first bit of advice that I would have for you and your fiancé is that you should each have an attorney if you are interested in drafting a premarital agreement. While this is not a necessity under the law, I would argue that having separate attorneys is probably the most important factor in creating an enforceable and fair pre-marital property agreement. Obtaining independent advice based on your specific circumstances is crucial to helping pre-marital property agreement negotiations go smoothly.
Having an attorney available to rely upon for advice and context does not mean that the drafting of your pre-marital property agreement will be any more contentious or hostile. We began today’s blog post discussing how there is a certain reputation in our culture surrounding pre-marital property agreements. In the same way, there is certainly a reputation that attorneys tend to drag out processes to make more money. Having an attorney will only cause more fighting in whatever legal application you were talking about.
The irony is that attorneys are usually the last people they seek out of a fight, especially in family law matters. The reality of the situation is that family law attorneys are among the busiest of all lawyers. We spend a great deal of time with clients in mediation and other places like that and physically in court and attending hearings. Time is a scarce commodity. As a result, attorneys will do everything possible in most cases to allow negotiations to proceed smoothly and not act in a way that will stir up unnecessary litigation.
With this in mind, do not think that if you hire an attorney to guide you throughout negotiations on a premarital agreement, doing so will cause acrimony to develop in your relationship with your fiancé. If anything, having an attorney available will help you pinpoint the areas where you need the most assistance and help you avoid a situation where your case drags on any longer than it has to. Simply by having your attorney, you can increase your chances of drafting an enforceable in a fair premarital agreement.
By the same token, it is complicated for your future spouse to argue that they were tricked or forced to sign an agreement against their will if both of you have your attorney. On the other hand, if one of you chooses not to hire an attorney, this should be made known throughout the premarital agreement. When in doubt, I would always recommend that persons going through pre-marital property agreement negotiations should draft their agreement as simple as possible as far as wording. There are no extra points awarded to the parties who use the biggest words to draft the agreement. Simple is better and should be utilized as much as possible.
A clear understanding of the issues that are a part of the premarital agreement is key to enforceability. Knowing what is expected of you, your fiancé, and how your responsibilities interact is important. The more convoluted and difficult it is to understand an agreement, the more likely a judge will declare the whole document unenforceable. This is not what you want after spending a great deal of time and energy drafting and negotiating an agreement like this.
Disclose all information used in negotiations with your fiancé
This may go without saying, but I think enough people step over this piece of advice to cause it to be relevant. When you are negotiating Anything with any person, it pays for you to be as honest as possible when disclosing information. Keep in mind that your negotiations should not be adversarial. After all, these do not divorce negotiations; they are negotiations that cover you all in the event of a divorce. You and your fiancé are (theoretically) happy with one another right now. Use those positive feelings to your advantage by sharing information.
I envision a situation where you are a previously divorced individual or just an adult who is no longer in the “young” category. I’m not saying that you are a step away from a retirement community, but you are no longer fresh out of college. As a result, you likely have some debts and some assets built up in your name. If this sounds like you, you should be aware that some of these assets and debts could impact your finance and your marriage in the future. As such, you may want to plan a way to separate these assets and debts from your community estate or anything that could be divisible in your divorce.
A premarital agreement is a perfect way for you to keep your assets and debts separate from your spouse’s assets and debts. Many people entering into marriage number two (or three, or four, or….) want to keep their past as far away from their upcoming marriage as possible. Maybe financial problems spelled doom for your prior marriage? Maybe you have taken on some risky investments that you would like to protect your fiancé from as much as possible? If any of these circumstances hit close to home, then you should be careful to disclose as much information as you can with your fiancé.
The first reason is that you want them to understand why you are negotiating the way you are. How many times have you been involved in a conversation with another person, and you could tell that something was off? Almost like they were assuming that you knew something that you didn’t know? Imagine being in that situation in a negotiation over the future of your family finances? It would help if you wanted to be upfront and clear about what your financial profile looks like. To be anything less than clear is to be unkind, as it has been said.
Can a no-contest clause be useful to insert in the premarital agreement?
Let’s suppose that you and your fiance agreed to a premarital property agreement about six months before you tie the knot. Then, after five years of marriage, you file for divorce against her and then seek to incorporate the terms of your pre-marital agreement within the context of your divorce. Your wife, who has never really been a fan of the prenuptial agreement, attempted to argue that the premarital agreement was no longer enforceable regarding the no-contest clause included in the document.
Specifically, you were under an obligation to pay your wife a certain sum of money at the time of your divorce to live up to the terms of your pre-marital agreement. Once you filed for divorce and missed a few payments that were due under the agreement, your wife came back and sued to enforce the document and force you to make the payments. In a situation like this, I believe that you would be able to enforce the terms of the document, given that the no-contest cause requires your wife not to contest the payment of any provision in the future. Not this be a word to the wise that if your premarital agreement contains a note contest clause, you could subsequently lose the right to receive money or benefit if you attempt to argue against the enforceability of the contract.
Closing thoughts on premarital agreements
Despite how premarital agreements are thought of in our culture, I think they can serve a great purpose for you and your fiancé if you consider your future financial needs. There is nothing nefarious or slimy about wanting to enter into one of these agreements. Rather, I think they can serve the terrific purpose of helping people like yourselves avoid disputes during a marriage regarding money. When you consider that money fights and money problems lead to divorce as frequently as any other subject, if you can put these sorts of issues to bed before you even get married, it can essentially act as a type of marriage counseling.
While a premarital agreement does not have to be complex, it always helps to assist when negotiating in drafting a document. Even if you and your fiance could successfully negotiate a very fair premarital agreement, the document must be enforceable for those negotiations to have been worth it. Having an attorney present to help guide you, advise you on various subjects, and then a role in drafting the document can be invaluable for you and your fiance.
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