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Creating a post-nuptial agreement in Texas and its potential benefits for your family

Post nuptial agreements are similar to pre marital agreements with the exception that post marital agreements are signed after the marriage has already begun. I realize that this will not be an earth-shattering revelation for me to make but it bears mentioning that the motivations behind signing an agreement of some sort with your spouse will have changed now that you are married.

The law in Texas holds that you and your spouse may agree to and sign a post-nuptial agreement where a portion or all of their community estate is included in the agreement in some form or fashion. A common part of this agreement is that either your income or your spouse’s income will be the separate property of whichever one of you has actually earned those wages.

The other spouse will have no claim to it should a divorce occur. Regardless of the type of income or property that is partitioned, if the property or income goes to you in the agreement then it is yours free and clear of any subsequent orders from a court or negotiations between you and your spouse.

A pre-nuptial agreement can take separate property and make it part of the community estate

If you and your spouse agree to do so, a piece of property that was previously a part of one of your separate estates can be converted into community property within the pre-nuptial agreement. A statement that “Piece of Separate Property” is now part of the community estate is what I am referencing here, as opposed to you transferring the title to a piece of your separate property to your spouse or deeding a piece of land that was in your name to your significant other.

Requirements of a post-nuptial agreement in Texas

Texas law holds that certain requirements must be met for your post-nuptial agreement to be valid and enforceable.

In Writing

For starters, like a last will and testament, a post-nuptial agreement must be in writing in order for a court to enforce the agreements contained within it.

Must be Signed

Both you and your spouse must have signed the document free of any fraud, duress or other factor that may have unduly or unfairly influenced your decision making capabilities.

Free of any Fraud or Duress

In fact, the failure of one party to sign the agreement and the possibility of fraud or duress being in existence are probably the two most commonly stated reasons as to why the validity of a post-nuptial agreement may be challenged by either you or your spouse.

Must Disclose Financials or Waive Disclosure

The other big reason that family law attorneys in Texas encounter is a similar reason for going back and having to open up a previously closed divorce case- that there was a failure by one spouse to disclose information that otherwise stated would have caused the agreement not to be signed off on by one party. This two part analysis must show that one spouse withheld the information and secondly the “innocent” spouse would have had no other way of knowing this information.

What are some motivating factors for signing a post-nuptial agreement?

If you entered into your marriage with plenty of assets and very little or no debt, but your spouse is in the opposite position, then you know what it is like to have creditors hounding you for money and payments.

Asset Protection

This may have come as a shock to your system and caused you to consider your options in regard to how best to protect your assets. A post-nuptial agreement is one such way that you and your spouse can actively protect the assets that could be sought by creditors in collection efforts for your spouse’s debts.

I have also seen married people enter into pre-nuptial agreements when their marriage is on the rocks and in need of shoring up through therapy or counseling. If you are questioning whether your marriage can last it is likely that you are questioning the motivations and motives of your spouse at least to a certain extent.

Reduce Suspicion

A post-nuptial agreement can decrease the level of suspicion by both you and your spouse prior to these important therapy sessions even beginning. What better way to ensure that your intentions are purely the maintenance of your marriage rather than an attempt to shield or steal away a portion of your spouse’s assets?

If you partition your assets and debts prior to beginning counseling both you and your spouse understand the what the playing field is and can have greater peace of mind as a result.

Insulate Risk

Finally, it could be that you or your spouse are taking on a new business opportunity, expanding an existing business or have simply come into money through an inheritance or gift from a family member. If you all have engaged in a recent “big ticket” purchase or are planning on engaging in a risk like expanding a business then it may be beneficial for you and your spouse to insulate the “other” spouse from the risks incurred by the spouse about to take on a loan.

A situation that I have seen before involves a spouse taking out loans on behalf of her business. She was using inheritance money to pay for the debt and the married couple was experience tough financial times as a result.

When fear and worry over money rises to this level then a post-nuptial agreement can put those fears to rest. For instance, in the above situation the family home was transferred into the husband’s name in order to provide him and the children with the security of knowing that their home would not be in jeopardy should the wife’s business creditors begin to look for assets to pay off unpaid debts. At the same time, this agreement alleviated concerns that the wife had towards her husband’s perceived lack of faith in the future success of her business.

Questions about post-nuptial agreements? Contact the Law Office of Bryan Fagan, PLLC

The Law Office of Bryan Fagan, PLLC represents clients in many different capacities, one of which is the drafting of post-nuptial agreements. To learn more about this process and to have any questions you have answered on this subject please do not hesitate to contact our office today. A free of charge consultation with one of our licensed family law attorneys is only a phone call away.


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Law Office of Bryan Fagan, PLLC | Post-nuptial Agreement Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding Post-nuptial Agreements, it's important to speak with a Houston, TX Post-nuptial Agreement Lawyer right away to protect your rights.

A Post-nuptial Agreement Lawyerin HoustonTX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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