Earlier this week, the attorneys at the Law Office of Bryan Fagan, PLLC, delved into the intricacies of premarital agreements in their blog post. They shed light on the significance of these agreements within a marriage. Today, we pivot our focus to another important legal document: postnuptial agreements. Often considered the lesser-known counterpart to prenuptial agreements, postnuptial agreements play a crucial role, especially in Texas. These agreements, entered into after marriage, can provide couples with clarity and reassurance regarding financial matters and asset division. Moreover, it offers valuable protection and peace of mind for spouses navigating the complexities of marriage in Texas.
Postnuptial agreements, in accordance with the Texas Family Code, require careful drafting and mutual agreement. Additionally, you must ensure compliance with any relevant state laws. If you and your spouse agree on any matter that falls outside of the law, you risk a judge declaring that section unenforceable and void.
You and your spouse must ensure that the terminology used in your agreements is coherent and complies with our Family Code. Therefore, having experienced representatives on your side during a negotiation process can be extremely helpful. Let’s explore postnuptial agreements in greater detail.
Postnuptial Agreements- A breakdown of what they are and what they do
As I noted at the outset of this blog, postnuptial agreements are not as well known as prenuptial agreements. Our culture has made prenuptial agreements a little more well-known. Whether through music, television, or movies, the term “prenup” is one that we hear more and more these days.
A postnuptial agreement aims to prompt you and your spouse to closely examine any issues causing difficulties in your marriage and find solutions promptly. Additionally, it encourages open communication and collaboration, fostering a deeper understanding and mutual respect between partners.
The solution will ostensibly be agreeable to both you and your spouse now and will benefit you all by creating a more amicable divorce (theoretically) should the need arise later.
Benefits of a postnuptial agreement
The benefit of a postnuptial agreement is that even before the divorce, you and your spouse may divide up your property, income, assets, or debts in the fashion as outlined in your postnuptial agreement.
Nothing is stopping you from doing so- not even the approval by a judge. Of course, you must abide by the terms set out for postnuptial agreements in the Texas Family Code, but that is about it.
Another benefit of a postnuptial agreement is that you and your spouse can use it to change the terms of a previously agreed-upon prenuptial agreement. We all know that your life, your spouse’s life, or some combination thereof can change over a few years.
That a postnuptial agreement can essentially modify a prenuptial agreement may be of some value if you and your spouse find yourselves looking at significantly different marital circumstances that had been in place at the time your marriage began.
If you and your spouse:
- divorce or
- your spouse passes away
A postnuptial agreement being in place can provide peace of mind by allocating resources towards a spouse who otherwise may have lost out on their right some percentage of the deceased spouse’s property through intestate distribution upon death.
I would recommend that anyone over the age of eighteen have a will. With that said, however, a postnuptial agreement can fill in the gaps if you do not.
Spousal support- How can a postnuptial agreement affect the need to pay
Texas law allows for the payment of spousal support/maintenance both temporarily during a divorce and on a more permanent basis after the divorce occurs.
The Family Code lists the guidelines for spousal support guidelines regarding how long a marriage has to have lasted for you to request this type of payment from your spouse. A postnuptial agreement can allow you and your spouse to develop specific provisions regarding spousal maintenance during your marriage and upon your divorce.
You and your spouse can include provisions in the postnuptial agreement stating that neither of you will request or pay support upon divorce or death. Similarly, you can override Texas community property laws by specifying in the agreement that a piece of property, typically considered community property, will go into either your or your spouse’s separate estates.
Family-run businesses and postnuptial agreements
If you and your spouse own a family business, then you all will want to do whatever you can to ensure that it remains profitable, well run, and free from drama if you two decide to end your marriage.
Many divorce cases center around what will happen with the family-run business. Parties and their attorneys can spend thousands of dollars on expert witnesses to prove the value of a company or at least attempt to establish when a business came to be.
If, after a divorce, you want to shift roles within the company or have your son take over the day-to-day operations, then you can negotiate for those terms in a postnuptial agreement.
In this way, the postnuptial agreement acts as a business planning device and marriage planning instrument. If there is a way to divide the business at the time of the divorce that you don’t believe a judge would be too keen about, but you believe it to be fair, a postnuptial agreement is an excellent way to help further that cause.
Conclusion
While prenuptial agreements may take the spotlight, postnuptial agreements in Texas deserve equal attention and consideration. As demonstrated by the insights shared earlier, these legal documents can play a crucial role in safeguarding the interests and assets of spouses, even after they have tied the knot. Moreover, by exploring the realm of postnuptial agreements and understanding their potential benefits, couples can proactively address financial concerns and strengthen their marital bond. So, whether contemplating marriage or already navigating its waters, it’s worth consulting with legal professionals to explore the possibilities of a postnuptial agreement in Texas.
Questions about postnuptial agreements? Contact the Law Office of Bryan Fagan, PLLC
To learn more about postnuptial agreements or any other subject in family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC.
A free-of-charge consultation is available with one of our licensed family law attorneys six days a week. Our office represents clients from southeast Texas, and we would be honored to do the same for you and your family. The first step is to pick up the phone and call today.
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Other Articles you may be interested in:
- Understanding Prenuptial and Postnuptial Agreements in Texas
- What to Include in Your Postnuptial Agreement: Safeguarding Your Assets and Ensuring a Secure Future
- A postnuptial agreement cannot establish child custody orders
- 4 Fast Facts You Need to Know about Postnuptial Agreements
- Creating a post-nuptial agreement in Texas and its potential benefits for your family
- Could a postnuptial agreement help save your struggling marriage?
- Here is how you write a great post-nuptial agreement in Texas
- Can a postnuptial agreement save your marriage after one spouse is unfaithful?
- Making Postnuptial Agreements Stick in a Texas Divorce
Frequently Asked Questions
Postnuptial agreements in Texas must meet specific legal requirements to be considered valid and enforceable. Some key requirements include:
1. Both parties must voluntarily enter into the agreement.
2. Full financial disclosure is essential for transparency.
3. The agreement must be in writing and signed by both spouses
4. Each party should have independent legal representation or have waived it knowingly.
5. The terms of the agreement must not be unconscionable.
A postnuptial agreement may be voided or invalidated under certain circumstances, such as:
1. Proof of coercion or duress in signing the agreement.
2. Failure to provide full financial disclosure.
3. Evidence of fraud or misrepresentation.
4. f the terms of the agreement are found to be unconscionable or unfair.
5. Not meeting the legal requirements for execution.
Yes, if a postnuptial agreement meets all the legal requirements and is executed properly, it is legally binding and enforceable in Texas.
While it is technically possible to draft a postnuptial agreement without an attorney, it is highly recommended to seek legal counsel to ensure that the agreement complies with Texas Family Law and covers all necessary aspects to protect your interests.
Postnuptial agreements are typically intended to be long-term agreements. They remain valid and enforceable until modified or revoked by both parties in writing.
The process of setting up a postnuptial agreement involves:
1. Hiring an experienced family law attorney.
2. Discussing your goals and concerns with your spouse.
3. Providing full financial disclosure.
4. Negotiating and drafting the terms of the agreement.
5. Signing the agreement with the appropriate legal formalities.
If a postnuptial agreement meets all legal requirements and is fair and reasonable at the time of execution, it is likely to hold up in court. However, individual cases may vary, and it is best to consult with an attorney for specific advice.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
