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How to draft a premarital or marital property agreement in Texas

Like anything else in life, if you want to know how to do something you ought to do your research first. When it comes to matters relating to family law it is best to have an attorney representing you whatever it is you are trying to achieve. I can tell you that many of the clients at our law office originally attempted to represent themselves only to find out that the challenges they faced were too much for them to handle. As a result, these folks came to our office to begin working with us. 

Significant harm can be done to your case and your life if you go into your family law case without representation. Beyond the fact that you are not an attorney, you also have a day job and a family. This means that not only do you not have the expertise to handle a family law case you also don’t have the time to learn how to proceed within the family courts. This is a double whammy that you won’t be able to adjust for along the way. It’s not like you are suddenly going to have an additional four hours a day to learn about family law, drafting documents and negotiations within a family law case.

Next, consider the time that will be lost by virtue of the fact that you are trying to learn how to file and proceed with a family law case. Think about when you first started in your job. How much longer did it take for you to complete the assignments that you now consider basic or rudimentary? I’m willing to bet that you can do something now in a matter of minutes that it may have taken you an hour to complete when you first started working at your current employer. 

The same can be said for a family law case. Filing a family law case is not rocket science, but there is a process to follow. You have to learn the basics of that process even to get your foot in the door. That’s not to mention the fact that you don’t know the ins and outs of working a case and how to get things done efficiently once your case is filed. You may be losing time, money and taking on stress when you attempt to represent yourself in a family law case. 

Here is my point- before we get into the meat and potatoes of today’s blog post. There are many, many attorneys in southeast Texas who will take your family law case and will tell you that they can handle helping you draft a premarital or marital property agreement. However, there are very few attorneys that only practice in family law and have the experience in helping clients negotiate and draft these agreements like the Law Office of Bryan Fagan

Before you make a decision to hire a lawyer, I recommend you contact our office to discuss how we can assist you during this part of your life. A consultation with one of our licensed family law attorneys is free of charge and is a great opportunity for you to ask questions and receive direct feedback about your particular circumstances. I hope that the tips we provide you with today will be helpful to you and your family. However, the only way to get your specific facts and circumstances considered is by speaking to an attorney directly. 

You and your spouse should each have an attorney representing you

I think the most important piece of information that I can share with you today (other than the advice I just gave you about hiring an attorney) is that both you and your spouse (or fiancé) should each have attorneys in the negotiation process. I understand that you and your spouse are not on bad terms and that, right now, you likely see eye to eye on many issues. However, you are negotiating about subjects where you and your spouse may not have the same interests or have different understandings of the facts. As such, having the same attorney will not allow you each to receive objective, independent advice that is suited to your specific interests. 

However, you also need to know that a family court will not toss out your agreement if the only issue is that you and your spouse did not have separate representation in the negotiation and drafting process. That means that if everything else about your property agreement is enforceable, the lack of having your own attorney will not alone render the agreement unenforceable. 

That does not mean that not having your own attorney would not be a factor in a determining the enforceability of the agreement. If there are signs that you coerced your spouse into signing the agreement or failed to disclose material facts to her, and she did not have an attorney of her own, that likely would cause your agreement to be declared unenforceable by a family court judge. With that said, it would make a ton of sense for you and your spouse to both have an attorney during the negotiation and drafting of a premarital or martial property agreement

If your spouse tells you that she does not want to have her own attorney for consultation and representation, then you all should make note of that in the agreement itself. It should be specifically stated that your spouse was told that it would be in her best interests to have an attorney present to advise her but that she chose to forego representation. The agreement should also state that your attorney did not provide any advice or counsel to your spouse at any point in the drafting and negotiation process. 

An attorney cannot ethically represent both you and your spouse in the drafting and negotiation of a premarital or martial property agreement. In addition, an attorney cannot provide advice to the other party in this process, either. Do not expect that if your fiancé hires her own family law attorney during the negotiation of a premarital agreement that you can get by asking that lawyer questions and thus save on attorney’s fees. It won’t happen. 

Don’t wait until the last minute to negotiate your premarital agreement

I think it’s the tendency of most people to wait until the very last minute to do most anything. If you are planning a wedding, I think there is a even greater likelihood that you would push anything not related to the wedding to the backburner of your life. A premarital property agreement is one of those things that is not directly related to a wedding but is extremely important in its own right. 

You and your fiancé should do your best to not negotiate and draft a premarital agreement in the days prior to your wedding. In fact, you should aim to complete this process as far before the “big day” as possible. The reason that I believe you should not wait until the last minute is because the closer to your wedding that the agreement is signed, the greater the likelihood that the agreement can be challenged as being influenced by fraud or duress. Basically, it can appear that one of your only chose to sign the agreement because you were running out of time or were being forced into doing so. 

There is no hard and fast rule that states the length of time between when the agreement is signed, and the date of your wedding has any specific importance when it comes to enforceability. However, it is still best to negotiate well in advance of a wedding and to have your agreement in place so that you can focus on the other issues that are ongoing in your life. 

Put all your cards the table during the negotiation process

You and your spouse should both enter the negotiation process with a willingness to make all available and pertinent information available to other side. This means assets and liabilities should be disclosed- even the information that could be advantageous to your spouse or detrimental to a position that you are attempting to argue from. Keep in mind that if you fail to do so, is entirely possible that you could get your spouse to sign on the dotted line. However, it will be much tougher to get the judge to declare that it is enforceable. With that determination, the agreement is not worth the paper that it is printed on. 

It is possible to talk to your spouse about signing a form that would waive the need to receive all information regarding financial information and obligations that you have. This form would need to be signed before you sign the marital property agreement, however. The date, time and even location of where that waiver is signed would be important to note on the form as well as within the property agreement itself. You want to avoid any future confusion or question as to the validity of either document. 

Can you videotape the signing of the agreement?

It may be wise to go to such lengths as to have the signing turned into a ceremony of sorts. You can hire a videographer to videotape the signing of the document. Select a mutual location or make sure that your attorney is present with you when signing to remove a lot of the doubt surrounding whether or not the agreement was signed in good faith by each party. This may seem like overkill to an extent, but it will seem like a great investment in the future if you have any issues with your spouse arguing that the agreement wasn’t signed in good faith or was negotiated under duress. 

What about agreements to convert items of your separate property into community property?

Since Texas is a community property state, many spouses will anticipate challenges and opportunities that come with sharing in much of the income and property acquired during that marriage at the time of divorce. As such, you and your spouse may agree in advance all property or part of the property found in either of your separate estates that is owned by either of you should be converted into community property. This is possible assuming that a few legal formalities are met. 

A marital property agreement that seeks to convert your separate property into community property must be in writing, signed by you and your spouses, must identify the specific property that is to be converted and should specify that the property is being converted into community property. If all of these requirements are met, then the odds are good that your agreement will be enforceable. Typically a judge has no power to divide property in either of your separate estates. An agreement like this would allow the judge to side step that limitation. 

Keep in mind that an agreement like this can only impact community property. Any part of your agreement that attempts to isolate and protect from division any property that is already part of your or your spouse’s separate estate would have no legal effect. Signing the agreement voluntarily and receipt of financial information in advance of the hearing would be necessary to show if you or your spouse attempt to argue that the agreement should be unenforceable. 

The vast majority of courts in Texas will choose to uphold your marital or premarital property agreement. You should be careful in drafting these agreements, however. If you can start with the knowledge we have provided you with today and then hire your own attorney to guide you that should help ensure that your agreement is enforceable and works well for you and your spouse. 

If you have any questions about the material that we covered today 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. Thank you for your attention today and I hope to have you back tomorrow as we share more information about Texas family law. 


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