There may be a less romantic topic to discuss with your spouse to be than a prenuptial agreement. Nothing says “love” quite like a contract between yourself and another person where your property is divided up in anticipation of a future divorce. The same can be said of a postnuptial agreement, the difference being that you are contracting with your spouse after your marriage has already begun. With that said, prenuptial and postnuptial agreements can be extremely effective means to protect yourself and your spouse. Today’s blog post from the Law Office of Bryan Fagan, PLLC will discuss this subject in detail.
Marriage is a commitment and is a contract under the law
The fact of the matter is that marriage is considered to be a contract between you and your spouse. The Texas Family Code defines what a marriage is in Texas and dictates the terms of that agreement. However, a prenuptial or postnuptial agreement allows you and your spouse to side step many of our State’s laws on the subject of marriage and allows you all to inject your own rules into place. These agreements allow you to modify and alter the contract that the State of Texas in essence forces you to agree to upon marrying your spouse.
Premarital agreements are agreed to before your marriage begins. Postmarital agreements are agreed to after your marriage has already begun. If you and your spouse want to have a greater amount of control over where your property goes if your marriage were to end in divorce then entering into either of these kind of agreements is a good idea. The primary focus of either type is on property division but can touch on a number of different subjects.
Texas is a community property state
You may be aware of the fact that Texas is a community property state. This means that all property (real property, personal property and other assets) acquired during your marriage is presumed to be owned by both you and your spouse. It does not matter whose name is on the title to the property. It does not matter whose name the bank account is in. If your checking account has only your name on it, has only your income entering into it but contains income from a job you worked during the course of your marriage the funds within that account are community property.
If you and your spouse were to get a divorce, then the property that is characterized as community property would be subject to a just and right division by the judge. While just and right may indicate to you that a 50/50 split is appropriate, a judge can take circumstances into consideration and divide up the property in any proportion that she believes is appropriate.
The benefit of agreeing to a prenuptial or postnuptial agreement with your spouse is that you all can create that proportion and designate certain pieces of property as belonging to either you or your spouse. For instance, if you are a doctor, lawyer or a member of any other profession where being sued is common, you can protect your spouse by declaring certain property to be their separate property. Thus, those pieces of property would not be subject to any judgment won by a party who has filed suit against you.
Must a prenuptial or postnuptial agreement divide up your property 50/50?
The simple answer is that prenuptial and postnuptial agreements do not have to be straight 50/50 splits of the property that you and your spouse own. However, there are other requirements that do need to be in place for an agreement to be valid.
First and foremost, an agreement must be in writing with both parties represented by attorneys. It must be clear that both parties had an opportunity to review the proposed agreement and that neither side signed off on the agreement under fraud or duress. The parties must also disclose all information available to them as to the status of their property ownership rights. Finally, the agreement must not be so one-sided as to be unconscionable.
If the agreement is later challenged by the spouse who believes it to be unconscionable, a judge will make the decision as to whether or not the agreement is in fact unconscionable to the point where it is not enforceable or valid. The general consensus that I can relay to you all reading this blog post is that unconscionability cannot be so one sided that no reasonable person could believe that it was entered into voluntarily after the opportunity for negotiation.
Factors that a judge will consider in weighing whether or not an agreement is unconscionable
Your age and the age of your spouse will be considered by a judge when deciding whether to uphold the validity of a prenuptial or postnuptial agreement. For instance, if you are relatively young and your spouse is relatively old then a court may be less apt to declare as enforceable a rather one sided agreement that favors your spouse.
Another factor that courts consider that may not come to find for you immediately is the age of your children. If you are seeking to protect your wealth in order so that your children can receive a certain amount after your passing then that will be looked at by a judge.
Details on postnuptial agreements
Prenuptial agreements get all the headlines, but postnuptial agreements can be just as effective in allocating property effectively. Postnuptial agreements are typically entered into after a difficult time has been encountered by you and your spouse. The terms of the postnuptial agreement are supposed to put you and your spouse at ease by removing from discussion whatever property is being argued over.
A partition and exchange of your community estate is possible under a postnuptial agreement. This could mean that you and your spouse could agree that income from certain pieces of income generating property could be one of your separate property. Keep in mind that a potnuptial agreement does not need to be approved by a judge to be valid and enforceable.
Using a postnuptial agreement to alter or modify a prenuptial agreement
Imagine a situation where your relationship to your spouse has changed a great deal since your marriage began. This could be for any number of reasons but the important thing to keep in mind for our purposes today is that something is different about your relationship now when compared to your relationship in the past. A postnuptial agreement allows you and your spouse to keep up with those changes in the best way possible.
A final word of prenuptial and postnuptial agreements
The bottom line is that prenuptial and post nuptial agreements allow spouses to side step the law in Texas when possible and instead operate off of their own mutually agreed to division of property. This results in a more autonomy, greater control and a greater decree of flexibility than you would ordinarily allow.
I would not approach this subject from a defensive position. Just because you and your spouse or your spouse to be have begun talking about agreements that contemplate death or divorce does not mean that you do not love each other or have affection for one another. On the contrary, you may understand that because of your family dynamics there may be problems with how your property will be characterized upon death or divorce and you seek to take that decision out of a judge’s hands. Nobody knows your family as well as you and your spouse do.
Be sure to meet with and have an attorney review any agreement prior to your signing it. For maximum benefit you may want to hire an attorney to help you negotiate the terms of your agreement and ensure that all portions of the agreement are enforceable.
Unfaithful spouse in your life? Tomorrow's blog post is for you
Come back to the blog for the Law Office of Bryan Fagan, PLLC to learn more about this subject. A consultation with one of our licensed family law attorneys is always free of charge. We proudly represent people like you- our neighbors here in southeast Texas.