An adage that I find particularly helpful in divorce is: that an ounce of prevention is worth a pound of cure. What this saying means is that by avoiding a problem you negate the need to create a solution. In the world of Texas family law, we concern ourselves so much with the outcomes and process of a divorce that we do not stop to think about how to avoid the case in the first place. Our mindset is geared towards finding solutions to problems. However, we don’t stop to think about avoiding the situation in the first place.
When it comes to divorce, some of the most noteworthy problems exist concerning disagreements between spouses during the case. Divorces are somewhat notorious for creating an atmosphere where hostility is the name of the game. Of course, this happens because of problems already existing in the marriage. That you are now in a position where you have to work together with this person to end the hostility is extremely ironic. Your instinct may be to fight with your spouse. You are now made to negotiate with him or her.
What can be done to avoid this type of situation? In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss what it takes to diminish the likelihood of an extended divorce. However, this is not a question you can tackle during the divorce itself. Rather, you need to be able to answer a question like this in advance of the case becoming a reality.
Getting past the feelings that come with a prenuptial agreement
Many of you reading this blog post likely have uncomfortable feelings regarding prenuptial agreements. Thinking in detail about a divorce before you even get married may seem like a pointless endeavor. At the very least, you may be jinxing your marriage by going through so much planning associated with divorce planning. At the Law Office of Bryan Fagan, we understand these types of feelings. In some ways, it can feel counterproductive to plan for a divorce while you are planning for a wedding.
With that said, there are potential benefits to a premarital agreement. Many times, spouses who engage in the negotiation of a premarital agreement find the discussions to be fruitful. For one, not that many people engage in concentrated premarital counseling. These are the type of sessions where you and your fiancé talk through difficult subjects and discuss plans for your marriage. Premarital agreement negotiations can act as a type of premarital counseling. You may be surprised to learn that the discussions you have negotiating over financial matters prepare you better for your marriage.
Another important point to make is that there may be subjects in your marriage that need to be negotiated upon. Avoiding these topics and putting them off for another day is not wise. Rather, taking the time to negotiate with them before the marriage can avoid more difficult conversations later. We all know that delaying or prolonging a conversation is never productive. For that reason, working with your fiancé to negotiate a premarital agreement can help avoid more difficult conversations later in your relationship.
What are your preconceived notions about premarital agreements?
Many people have concerns about premarital agreements. In our culture, there has been a predisposition towards disliking Premarital agreements. We have already covered how that may be. Premarital agreements seem to put an end to the marriage relationship before it even begins. For many people, this is a difficult subject to bring up with your fiancé. During a stage of your life where you are supposed to be planning out your marriage, you instead will be planning on your divorce.
However, is this the right way to look at that situation? Are you planning a divorce when you are considering a premarital agreement? It is difficult to imagine a situation where you would be actively planning to end your marriage before it begins. Rather, think of premarital agreements as planning for the future. We plan all sorts of events just in case they happen. You may have medical planning with your doctors or plans on what you would do in the event of a flood in your home.
That’s not to say that you are hoping for bad health or a flood. Rather, it is responsible to think ahead and to plan out what you would do if you need to do something about a troublesome situation. By planning the terms of a divorce within a premarital agreement you can deflate a lot of anxiety and anger which may arise later. This also helps you to have clarity and peace of mind as you plan your wedding and married life moving forward.
What is a premarital agreement?
Before we go any further, it is important to define exactly what we are talking about. Some of us have heard of premarital agreements in our culture but don’t have a great idea about what a premarital agreement is. As the name would indicate, a premarital agreement is a document signed by you and your spouse before your marriage. The premarital agreement determines what happens in your marriage if a divorce is filed.
Premarital agreements are limited to financial matters. Financial topics and divorce revolve around assets and debts. Assets are property such as your home, bank accounts, and retirement savings. Your debts can include the mortgage on your home karma credit cards in student loans. Given how frequently Americans take on debt it is important to be aware of the credit that you have in your life.
All of these are subjects that can be included in a prenuptial agreement. The prenuptial agreement sets forth a plan to determine how your property will be divided in a future divorce. When filing for divorce you would include as an attachment your premarital agreement. This would take the place of any negotiation that you would normally have during your divorce. Essentially, you will be negotiating for your case before getting divorced.
Where a married couple benefits from the creation of a prenuptial agreement
First, a prenuptial agreement allows you to define property in the way you and your fiancé want it to be. Texas has laws regarding the division of marital property. Marital property is referred to as community property in Texas. All property acquired during your marriage is presumed to be community property with some exceptions. This means that if the property was acquired during your marriage, you should expect it to be classified as community property.
Therefore, if you do not want this property acquired during your marriage to be subject to division you would need to negotiate that before the marriage begins. A premarital agreement allows you and your fiancé to create your plan on how to divide property between yourselves. Instead of having to defer to the laws of Texas, you can create a plan for yourselves. This option typically suits families much better.
If you like the idea of working with your fiancé on creating solutions to complex problems then a premarital agreement should suit you well. Imagine a scenario where you can negotiate complex issues with your fiancé in a comfortable environment. This is not what most people are used to. Rather, most people expect that the discussion associated with these topics would come during a difficult divorce. Having the time to do so before the divorce even begins is ideal.
Allows you to understand what the marriage may look like
To be unclear is to be unkind. This is a mindset that I talk to clients about all the time. The idea here is that families tend to do better when they set reasonable expectations with one another. Hopefully, these expectations were set before the marriage even began. This way you could identify potential issues before you even got married. However, if you are not able to negotiate these in a premarital setting then you would need to during the marriage itself.
What you are left with are not only complex subjects to negotiate but also ones that are fueled by emotion. The emotions associated with these subjects can make it even more difficult to think through these topics. Having better expectations for the marriage means being realistic with the person you are married to. He or she may not have the same thoughts you do when it comes to the marriage. By establishing your expectations, you do not set up your fiancé to struggle alongside you in important matters in your life.
Many marriages fail simply because spouses are unable to plan properly for important events. Had you known something was going to be a major issue in your life you may have put more thought into the planning associated with that event. Topics like retirement, the handling of the finances for a small business, or even renovation costs for a home all become relevant in this context. The more you can think through these topics towards the beginning of a marriage the better off you will be in the long run.
Why decide against a premarital agreement?
All of this is not to say that a premarital agreement is not without its shortcomings. Rather, there are legitimate reasons why you may not want to sign a premarital agreement. First and foremost, if you have questions about any topic related to a premarital agreement you should not hesitate to hold off on signing the document. Even negotiating a premarital agreement can be complex. Therefore, working with an experienced family law attorney is the best course of action to take when it comes to this entire subject. Rather than agreeing to something that you may regret talk to one of our attorneys before you even begin negotiating.
Additionally, there are immediate financial consequences to engaging in these negotiations. Notably, by hiring an attorney you are likely signing up for at least a few $1000 in costs. If your fiancé has volunteered to pay for the cost of negotiations then that is one thing. However, if you’re fiancee is not willing to pay for the costs of representation then this is the factor for you to consider. As we just indicated, negotiating a premarital agreement without the assistance of an attorney is also not advisable.
Having an attorney to help you draft your premier title agreement is important. Just because you and your fiancé have an oral agreement on a subject related to your finances does not mean that the agreement will necessarily reflect this. Having an attorney to help you negotiate and then put into writing the agreement is crucial. Working with a family law attorney means having a certain level of experience when it comes to negotiating on this topic.
Determining whether your relationship can withstand premarital agreement negotiations
Some relationships may not be able to withstand the negotiations associated with a premarital agreement. You know the strengths and weaknesses of your relationship. If your fiancé struggles with communication, then a premarital negotiation may not be possible. On the other hand, you must ask yourself if you want to be married to a person that you cannot have an in-depth discussion with. Premarital agreement negotiations do not have to be vindictive or nasty. Those types of negotiations are likely to be counterproductive.
Bring up the topic of premarital agreement negotiations with your fiancé. See how he or she reacts. If the reaction is favorable, then you can feel more comfortable with moving forward in negotiations. However, if he or she is hesitant then holding off on additional negotiations may be in the best interest of your relationship. That is if you even see a relationship being sustainable at that point.
Child support topics in a premarital agreement
You can’t include any conditions regarding child support and a premarital agreement. Child support issues have to do with the best interests of your children. As a result, expect that this category of subject matter will be determined at the time of a divorce. The reason is that you cannot anticipate the needs of your child before he or she is born. Even if you already have children born of the relationship there is no telling the needs that that child will develop over time. As a result, child support issues are to be determined later, if at all.
How to initiate discussions about premarital agreements
For many of you reading this, initiating a discussion about premarital agreements can be challenging. The fact is that not all relationships are built the same. For example, you may find that there are roadblocks between you and your fiancé being able to discuss this subject conventionally. As a result, you and your spouse may have to work harder to develop a game plan geared towards success.
First, discuss this topic as soon as you can. This does not mean that you shouldn’t necessarily bring up the subject on a first date. However, it may mean broaching the subject shortly after your engagement. This allows both of you time to determine whether there is any likelihood of a settlement on these subjects. Many spouses are quickly able to realize that there is good reason to try and settle your case. On the other hand, the likelihood of a settlement decreases the longer it takes you to bring the topic to the floor for discussion.
Also, talk to your spouse about the negotiations in terms of what he or she can gain. Help him or her to understand what your concerns are. Your spouse may not fully grasp just how worried or concerned you are about a particular subject in your marriage. By directly approaching your spouse about the issues he or she may be more willing to concede that you have good sense and bring the topic to the floor. Your spouse may also be less than knowledgeable about this topic. As a result, bringing in an experienced family law attorney to help negotiate can be of great assistance to both of you.
Final thoughts on premarital agreements
Even if you and your spouse are not able to negotiate a premarital property agreement that does not mean that the negotiation necessarily ends there. Rather, the two of you have an opportunity to continue to negotiate into your marriage. Many times, the groundwork is laid early in your engagement. The more you can bring this topic to your spouse the greater opportunity you have for success in negotiations. The Law Office of Bryan Fagan is on your side.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
