Are you familiar with the expression, you can’t judge a book by its cover. This is a common saying that refers to not only considering the outside appearances of something. In other words, don’t just look at what something looks like on the outside when assessing it. Rather, you need to be able to take the time to look at something from the inside out.
This is true not only with books but with many areas of our lives. Consider how many of us would have judged people incorrectly had we not taken the time to get to know who they are on a personal level. This goes well beyond the skin-deep features that we see in that particular person.
When it comes to premarital agreements many people dismiss them out of hand. There are several misconceptions about premarital agreements that are worth looking into. These misconceptions can harm you and your spouse. Instead of allowing you to consider the merits of a premarital agreement, you may insist that negotiating such a document is not appropriate. Aren’t premarital agreements only for rich people? Premarital agreements are only for people who are anticipating a divorce, right?
In today’s blog post from the Law Office of Bryan Fagan, we are going to talk about these subjects. As we walk through these misconceptions think about how premarital agreement may help you and your fiancé. If you have any questions about the material covered in this blog post, please reach out to one of our attorneys for a free-of-charge consultation.
What does a premarital agreement do?
Simply put, a premarital agreement is a legal document that provides an outline of your rights and responsibilities as a spouse. The premarital agreement only goes into effect in the event of a divorce or the death of a spouse. This is relevant because one of the major misnomers about premarital agreements is that they go into effect immediately. Or that some terms of the premarital agreement are binding from the moment the document is signed.
In actuality, the premarital agreement may never impact you and your spouse until one of you passes away. However, in the event of a divorce, the premarital agreement becomes a helpful tool to help you and your spouse sort out the end of your marriage. Specifically, the premarital agreement determines in advance how community property is classified and divided.
Negotiating with your spouse during a divorce is not easy. Some emotions enter the picture and make this a challenge. However, by negotiating a premarital agreement you are doing your divorce negotiations before you are even married. This provides you with an opportunity to think objectively and make critical decisions while also dealing with the negative emotions that come about because of a divorce. Ideally, better outcomes are possible in a premarital agreement. Your specific experiences in negotiating a premarital agreement are determined by your level of preparation. Working with a family law attorney is a great way to prepare for success.
The timing of your premarital agreement
One of the misconceptions surrounding premarital agreements is that the document needs to be negotiated a certain number of days before the wedding. In Texas, there is nothing that states in the law your premarital agreement needs to be agreed to a specific number of days before your wedding. However, the earlier in the engagement process that the agreement can be studied provides you with the best opportunity to assess your future marriage.
This is an overlooked part of the negotiation process for premarital agreements. Not only is the premarital agreement important in and of itself but the negotiation process is, as well. You can look at the negotiation process as a kind of premarital counseling. Many times the subject matter discussed within the negotiation process would not otherwise be talked about. Negotiating through a premarital agreement means taking an in-depth look at several areas in your life. Discussing these sensitive topics with your fiance is a benefit to your relationship.
Many of us grew up in households where money was not discussed openly. As a result, we have a predisposition towards hiding or shielding ourselves from money talks. And a premarital agreement negotiation this is not possible. By choosing to negotiate on the subject matter you and your house to be open yourselves up to one another. There are many benefits to discussing financial information before marriage. Yours would not be the first marriage that was saved because of the openness and transparency experienced while negotiating a premarital agreement.
Hiring an attorney to help draft and negotiate
Many people believe that a premarital agreement is not valid unless both spouses have an attorney. The same general belief is held by many people regarding divorce cases. Namely, that to be valid an attorney must be hired. This is not the case. Rather, there is nothing in Texas law that states you or your fiancé need a lawyer for your agreement to be valid.
However, having an attorney represent you is a good decision in many cases. Number one, you want your premarital agreement to be enforceable. An invalid or void prenuptial agreement will not be enforced at the time of your divorce. All the work that went into the negotiation process will go up and smoke. Therefore, at least having an attorney review your premarital agreement for potential errors is wise.
Additionally, an attorney helps by assisting people in understanding how the law impacts their specific circumstances. Going through the Texas Family Code and memorizing every statute on premarital agreements may help you. However, this does not guarantee you success. What is a much better guarantee of success is having an attorney who helps you view the law through the prism of your circumstances.
Timing matters concerning premarital agreements
When it comes to the enforceability and validity of a premarital agreement, the most important feature is voluntariness. The premarital agreement needs to be signed voluntarily. This means that you and your fiancé must not have been fraudulently induced or placed under duress associated with signing the document. Evidence tending to show that fraud or duress was part of the negotiation process will likely lead a judge to determine that the document is not enforceable.
Documenting the course of negotiations is an important part of this process. Having your spouse come back in a few years to argue that the premarital agreement is not valid would be a blow to all the effort you put into the negotiation process. An example of a circumstance that may lead a court to determine the document to be invalid is presenting a premarital agreement to your spouse on the day of your wedding. Even if you did not say anything specifically to induce him or her to sign, the circumstances of the presentation matter.
Your spouse could conceivably be made to feel like he or she needs to sign the document or risk not getting married. There is also a “deadline” to sign a premarital agreement at the time of your wedding. Or else, it is not a premarital agreement. Many people do not know that you can sign a premarital agreement during your marriage. However, the only difference is that it becomes a marital property agreement.
What would a family court judge think?
Keep in mind that a family court judge, if forced to look at the circumstances of the agreement’s completion, would likely side against the spouse who presented the document at the wedding. Not having much time to review the document and not being able to consult with an attorney are two factors that go against the enforceability of that particular premarital agreement.
Failing to disclose your entire financial history
On the one hand, it is sensible to be honest and open with your fiancé about your finances. This helps strengthen the core of your marriage. It also helps when negotiating a premarital agreement. Choosing to hide certain elements of your financial life during premarital negotiations may harm your marriage and the document itself.
With that said, there is nothing under the law that forces you to tell your fiancee every detail about your Finances. If you and your fiancé are upfront with one another on what you are not disclosing then they’re likely will have no problem choosing not to disclose all information related to your financial lives. However, the more open and honest you can be the less likely you are to encounter arguments of insufficient transparency.
In some cases, people just don’t know what to talk about when negotiating a premarital agreement. You know that a premarital agreement might be good in theory but in practice I have no experience with the process. This is where hiring an experienced family law attorney can help you. An attorney can walk you through a basic checklist of pre-marriage financial information that may be relevant to your situation. From there, you can proceed with confidence regarding the negotiations.
How “fair” must your premarital agreement be?
The whole purpose of a premarital agreement is to sidestep the explicit laws in Texas on property division and divorce. Texas community property statutes may not arrive at the sort of outcome in your divorce that you would intend. How community property is classified is not always how the circumstances of your case align. This means that in some cases the law would create an outcome that is not desirable for you or your fiancé.
By entering into a premarital agreement, you can legally sidestep these laws. This allows the two of you greater autonomy and authority when determining how property matters are handled upon divorce or death. You and your fiancé are better equipped to handle matters related to your own lives than the state of Texas is.
Negotiating a premarital agreement prevents you from having a happy marriage
This misconception is like one that estate planning attorneys encounter. Estate planning attorneys occasionally will run into potential clients who do not want to draft a will because they are afraid that it will bring them closer to death. You may be laughing or rolling your eyes at this, but this is true. Many people think that if they put something unpleasant out of mind it will never come to be. We’re obviously, that’s not the way the world works. However, people tend to think illogically when it comes to sensitive matters.
By the same token, people who are preparing for marriage presume that a premarital agreement dooms them from the start. Instead of focusing time and attention on strengthening their relationship, these types of people will stress out about how thinking about the future prevents them from experiencing abnormal marriage.
It is the people who think about potential problems and tend to avoid those problems. They say that an ounce of prevention is worth a pound of cure. This lesson applies to premarital agreements. We have already seen how the negotiation of a premarital agreement may prevent a divorce. It is not the case that improved marital agreement makes it more likely for a divorce to occur.
Negotiating a premarital agreement means you have one foot out the door
Another misconception many people hold regarding premarital agreements is that a premarital agreement is an indication that you or your fiancé are not committed to the relationship. Meaning that you would be more likely to bail on the relationship once things get difficult. The thought is that because you have already negotiated a portion of your divorce it does not take much effort to go ahead and complete the transaction.
Again, from our experience, this is not the case. For one, some people who negotiate premarital agreements tend to do so because they are incredibly committed to their partner. The process of drafting a premarital agreement involves the discussion of topics that are not always pleasant. These people would prefer to discuss the subject matter sooner rather than later. This is reasonable given how a discussion of difficult-to-stomach topics tends to cause waves in the relationship.
Rather than wait to discuss them after the marriage has started it is better to go through them while you and your spouse are better equipped to handle a discussion. This does not mean that you and your spouse would be incapable of discussing them civilly. However, what it does mean is that there are additional stresses that come about during a marriage relationship. As a result, you cannot be sure how receptive your spouse will be to having that conversation during your marriage.
Prenuptial agreements may include provisions about your children
Finally, the last misconception we will discuss has to do with children’s issues. Family courts must make decisions about children based on the best interests of those children. Those best interests are determined when the subject matter is irrelevant. A court cannot uphold an agreement between you and your spouse years before the issue becomes relevant. Rather, it would need to make decisions about the children during the case itself.
One of the most common misconceptions about children and premarital agreements has to do with the ability to establish child support. Again, child support is based upon the examination of your child’s life at the time of a divorce. Your child may have needs in the future that are not present at this moment. As a result, do not attempt to include language about your children in your premarital agreement.
The exception to this rule would be establishing a minimum amount of child support. For example, you and your fiancé may agree to include a minimum amount of child support. That is more likely to be upheld by a future court than anything else regarding Your children.
Interested in discussing a premarital agreement? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan are experienced at negotiating successful premarital agreements. As you have seen today there are many misconceptions in our culture regarding premarital agreements. Because there are so many misconceptions that are commonly held it is understandable if you have developed in negative opinion of prenuptial agreements.
However, we hope that the information contained in today’s blog post has helped clear the air. Premarital agreements are an effective tool to be used to make a future divorce as smooth as possible. Thank you for spending part of your day today with the Law Office of Bryan Fagan. We pride ourselves on working towards amicable resolutions to two difficult family loss scenarios. The Law Office of Bryan Fagan is on your side.
Considering a divorce? Contact the Law Office of Bryan Fagan today
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.
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.
