Nobody wants to go through a divorce. This is true even if you are in a marriage on the rocks. Even though you may know that a divorce is upcoming for your family that still does not mean that you will want to go through the difficult and expensive process that is a divorce. Rather, if you would avoid the worst parts of a divorce that would be something that most people would want to take advantage of.
In today’s blog post from the Law Office of Bryan Fagan, we are going to spend time discussing one way to avoid the worst of a divorce case. A post-nuptial agreement is a primary method many spouses in Texas have used to avoid getting completely bogged down in a difficult divorce case. Along the way, the negotiation process associated with a postnuptial agreement may help save your marriage from divorce.
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Do not go into a family law case unprepared. Speak with one of our attorneys and you can learn exactly what you need to achieve the best possible results in a family law case.
Post-nuptial agreements protect your family
Are you curious about postnuptial agreements but not exactly sure where to start? Many people find themselves in the same position as you. We regularly hear about postnuptial agreements in our culture. Along with prenuptial agreements, postnuptial agreements are essentially contracts with your spouse that determine how your property will be divided in the event of a divorce. They are extremely effective tools that can be used to help build your life after a divorce.
A postnuptial agreement is legally binding once entered by you and your spouse. The key distinction between a postnuptial agreement and a prenuptial agreement is that a postnuptial agreement is agreed to after your marriage has begun. This is opposed to a prenuptial agreement which is agreed to before the time of your marriage beginning. In the event of divorce or death, you and your spouse can determine how your property will be divided.
Two main objectives are furthered by a postnuptial agreement. The first is that a postnuptial agreement protects the property of spouses. If you want to ensure that that particular asset of yours is not divided in the divorce, then a postnuptial agreement is a great way to accomplish that goal. Additionally, a postnuptial agreement can help you and your spouse avoid arguments and disputes over How property and debts will be divided.
Who benefits from a postnuptial agreement?
One group of people who especially stand to benefit from the creation of a postnuptial agreement would be persons with high amounts of wealth. An additional group that stands to benefit from a postnuptial agreement is people who have been married multiple times. These are groups of people who tend to have more property and assets than people who are first entering into marriage. If you are someone who has been married multiple times and has a significant amount of property to your name, then a postnuptial agreement may be something for you to consider.
Do you or your spouse have a significant amount of debt? Most of us have some debt to our name. There is nothing wrong with that necessarily, but it is good to have a plan on how to handle the debt in the event of a divorce. The last thing you want to do is get stuck with debt that you did not benefit from during the marriage. You and your spouse can agree to a manner of dividing the debt in a way that protects an innocent spouse. Think about your debts in addition to property when determining whether a postnuptial agreement might be right for your family.
Another circumstance that may lead you to consider a postnuptial agreement is if you have children from a prior marriage. For example, suppose that you have property from a prior marriage that ended in the death of your spouse. There may be sentimental items or family heirlooms that are now part of your estate. Working out an agreement that ensures your children from that marriage receive the property in the future is wise.
Possible elements of a postnuptial agreement
Postnuptial agreements need to be in writing. Both you and your spouse must agree to the document and sign it. Texas law allows for several elements to be contained in a postnuptial agreement. First, you may determine how property is divided if your marriage comes to an end. Texas is a community property state. Those principles would determine how your property is both classified and divided in the event of a divorce. However, with a postnuptial agreement, you can bypass that reality. You and your spouse can create your terms for how to divide the property.
One of the major considerations in a divorce relates to spousal maintenance. Spousal maintenance is court-ordered financial support to be paid from one spouse to the other after a divorce. Only a court can order spousal maintenance. However, you and your spouse can agree to contractual alimony. Contractual alimony is post-divorce and also support that is agreed to between spouses. An agreed to amount of post-divorce postal support can be created within a postnuptial agreement. This can help you to bypass one of the most complicated negotiating points in a divorce.
Enforcing a postnuptial agreement
One thing that cannot be included in a post-nuptial agreement is anything having to do with not paying child support. Your children have specific needs at the time of a divorce which need to be accounted for in child support. Since those needs cannot be anticipated in advance you and your spouse cannot predetermined child support in a postnuptial agreement. The best interests of your child will go to court in determining child support. As such, because those best interests are not known in advance child support cannot be determined within a postnuptial agreement.
Whatever your circumstances are it is best to have the advice of an experienced family law attorney. Make no mistake, postnuptial agreements can be very helpful to you and your family. The work that you put in now can certainly help your family avoid difficulties and strife later in a divorce. For that reason, there is a great deal to be said positively about the creation of a postnuptial agreement. You may be wondering where you and your family can start when it comes to creating a document like this.
That is where the attorneys with the Law Office of Bryan Fagan come into play. Our experienced family law attorneys know how to help spouses in your position successfully draft postnuptial agreements. Not only that, but we also want you to be confident that this agreement can be enforced in the future. Our attorneys work with you to create a document that conforms to Texas law. Reach out to us today for a free-of-charge consultation.
Motivations for creating a postnuptial agreement
Your motivations for creating a postnuptial agreement may vary. A good reason to consider the creation of a postnuptial agreement is that you envision a different outcome for property division than the laws in Texas account for. Keep in mind that if you and your spouse cannot agree in a divorce as to how your property will be divided then a family court judge will apply the community property laws of Texas.
A postnuptial agreement takes into consideration your specific financial circumstances. By accounting for these issues in your post-nuptial agreement, you provide yourself with greater peace of mind. You give yourself a better opportunity to negotiate your way through other areas of concern in your marriage. Now the two of you understand that you can work through difficult subject matter together as a team.
Additionally, your situation may change from the time you are married to when you consider a postnuptial agreement. It is not uncommon for one spouse to build up debt in that time. That may have been done on a personal level or even to further the interests of a small business. If this is the case with you and your spouse, then you may want to shield your spouse from the effects of that debt. A postnuptial agreement is one way to do this. Any major change in financial circumstances during your marriage may lead to a discussion regarding a postnuptial agreement.
Ensuring the enforceability of your postnuptial agreement
As we mentioned earlier in today’s blog post your postnuptial agreement must be in writing for it to be enforceable. Enforceability means that you would be able to take your document to court and have it approved by a judge. In the context of a postnuptial agreement, the terms included would be made a part of your divorce proceedings. If a postnuptial agreement is not enforceable then the agreement does not become a part of the divorce, and you must negotiate these issues during your divorce case.
Next, the postnuptial agreement must be signed by your spouse and you. The agreement should be as clear as possible when it comes to the terms included. The more clearly written the document is the more likely it is to be enforceable. For example, if portions of the agreement are not clear then a judge would have difficulty ruling that both sides knew what their responsibilities were. If you are not able to follow through on some aspect of the agreement because it is not clear, then that puts you in a position where the whole agreement may be rendered unenforceable.
Finally, it must have been voluntarily entered into by you and your spouse. This is a major component of the enforceability of a postnuptial agreement. Consider that the timing of the postnuptial agreement matters. If the postnuptial agreement was signed under odd circumstances or if it was agreed to in a matter of minutes, then those circumstances will come into play if you played no part in creating the document and were forced to sign by your spouse then the agreement would not be enforceable. Having experienced family law attorneys on both sides of the negotiation goes a long way toward proving the voluntary nature of the agreement.
What else needs to go into the creation of a postnuptial agreement?
A full disclosure of assets and liabilities is also critical to the enforceability of a postnuptial agreement. Consider that to have a fair agreement between parties you must be able to understand the entirety of the circumstances facing you. If you or your spouse is hiding documents or other information, then neither of you can be said to agree. All debts need to be disclosed. Even debts that you think are old or relevant should be brought up to your attorney. He or she can guide you on whether to disclose those and how to do so.
Overall, it is not worth your effort to try to create an unfair document. Your spouse is relying upon you for your truthfulness and candor. The whole point of the postnuptial agreement is to be able to negotiate with this person when you are on good terms. Keep in mind that if the document is found to be unenforceable later then you will need to negotiate with an upset spouse during your divorce. This is the worst of both worlds. Rather, allow your spouse to make a full and unimpeded decision regarding the merits of the agreement. Keep in mind that you can always negotiate these subjects later if you do not have enough information to provide at this time.
Matters related to children within a postnuptial agreement
Even if child support cannot be accounted for in a postnuptial agreement it is still possible to negotiate with them in mind. Overall, the best interests of your child need to be always maintained. It is presumed in Texas that a parent acts with the best interests of their child in mind when making decisions.
Overall, children’s issues should not be a part of your postnuptial agreement. This is true even if you already have children who have well-defined needs. As the needs of children frequently change over time you must be able to consider that at the time of your divorce. Hopefully, your postnuptial agreement never becomes something that must be put into action. However, at the time of your divorce, children’s issues related to custody and support can be decided.
When it comes to property-related issues with your children then consider how a postnuptial agreement may impact them. For instance, if you have children from a prior marriage then negotiating for certain property to be a part of your separate estate would make sense. That would ensure Your children from a prior marriage can receive the property you intend to leave them.
Final thoughts on post-nuptial agreements in Texas
Postnuptial agreements are not an admission of a failing marriage. Rather, postnuptial agreements can be a smart decision for you to make depending upon the needs of your family. Unfortunately, postnuptial agreements have a reputation as being something only for greedy or rich people. That could not be further from the truth. People of all different types and financial circumstances can benefit from a postnuptial agreement. All it takes is you putting forth the effort to learn more about them.
Ultimately, the potential benefits of a postnuptial agreement can be incredibly dramatic. Depending upon your specific position this not only is possible but probable. If you and your spouse work alongside one another then determining a middle ground on these issues is in your future.
Thank you for choosing to spend part of your day here on the blog for the Law Office of Bryan Fagan. After reading through this blog post if you have any questions about what to expect in a postnuptial agreement, please reach out to one of our experienced family law attorneys. We can walk with you and help you to understand better the potential benefits of a postnuptial agreement for you and your family. There is more than meets the eye when it comes to postnuptial property agreements.
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.
