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Here is how you write a great post-nuptial agreement in Texas

Like any other legal document, there are certain requirements that must in place for a postnuptial agreement to be effective. The Texas Family Code defines many of those requirements. In addition, there are other protections for spouses that can and should be included in the agreement. Today’s blog post from the Law Office of Bryan Fagan will walk you through the essential components of a Texas postnuptial agreement. 

What does the law in Texas have to say about post nuptial agreements?

A postnuptial agreement is a contract under the law. This means that agreement must be in writing and signed by both you and your spouse. An oral postnuptial agreement, no matter how in depth or well thought out, is not enforceable by a judge. However, just because you slap words on a piece of paper and attach your signatures to it does not mean that you have a valid postnuptial agreement. 

You and your spouse must have both signed the agreement with a full understanding of what the document says and what it means to your future. The tough part about proving that you didn’t have a full understanding is that it is typically presumed that once you sign a document (as an adult) that you have read and understood the entirety of said document. The burden is squarely on your shoulders if you want to come back and try to argue that you did not understand a portion of the agreement and therefore the document is not enforceable

You have to disclose all known assets and liabilities to your spouse before the agreement can be determined to be enforceable. Do you know what your spouse’s financial situation looks like- both during your divorce and before? If not, then you may have grounds to argue that the agreement is not enforceable. You can waive your right to be told a full accounting of your spouse’s liabilities and assets and in order to bypass any attack on the enforceability of the agreement this is often times a smart thing to do. 

The other thing that you and your spouse need to keep in mind is that the agreement cannot be so one sided as to be unconscionable. If you are placed into a significantly weaker position in comparison to your spouse when you signed this agreement then there are decent odds that it could be found to be unenforceable. As long as the agreement is not so over top favorable to you or your spouse and does not break any state laws you should be good to go as far as enforceability. 

What else should go into your postnuptial agreement

Now that we have covered the basics of what must be in (and out) of your postnuptial agreement for it to be considered an enforceable contract, now we can get into what additional language may you want to include in order to protect yourself and your spouse. The bottom line is that you and your spouse do not want to go through all the effort of negotiating and signing the postnuptial agreement only to find out that there are going to be legal problems between the two of you down the road. 

One of the reasons why it is a good idea for you to have your own attorney and for your spouse to have their own attorney during the process of negotiating and drafting a postnuptial agreement is that the attorneys will be able to draft a unique document for you and your spouse to sign. What you want to avoid is a fill in the blank type document that you can pull from the internet for free. If there is a disagreement over language in the future and you take your generic postnuptial agreement to court it may not be enforceable. 

Have an attorney (both of you) 

There is no law in Texas that mandates that both you and your spouse have attorneys during the negotiation and drafting of a post-nuptial agreement. However, as I mentioned a moment ago it is a good idea for both you and your spouse to be represented by separate attorneys. The reason being is that while you are married, your interests may not be identical from a financial perspective. Having your own attorney means that you will be given specific advice that you know is intended only to benefit you. Sharing an attorney creates a situation where neither you nor your spouse can be sure that the advice given to you is intended solely to benefit you. 

Have a judge declare the agreement as valid and enforceable

Unlike with a child custody or divorce case, you do not have to go before a judge prior to the end of a postnuptial agreement negotiation. All you have to do is keep a hold of the document for your records. There is no requirement that the document be filed. There is no family court cause number attached to the document. 

Because of this, I would recommend that you file a motion with the family court in your county wherein you ask a judge to issue a ruling as to whether or not the agreement is valid and enforceable. This will let you know if you have to go back and change anything about the agreement in order for it to be declared to be enforceable. 

Now that we have gone over some general information about postnuptial agreements, I wanted to share with you some information that is a little bit more specific in nature. 

For instance, a question that I receive a great deal in regard to postnuptial agreements is whether or not there are any assets that you and your spouse would not be able to keep as separate property in the postnuptial agreement. The answer would be that all assets owned by either spouse before your marriage can remain your separate property

Issues regarding children and postnuptial agreements

Unless you and your spouse agree to something related to your child that is found to be in that child’s best interests the court will not allow anything regarding a child within postnuptial agreement to be enforced. The best interests of your child will be determined at the time your agreement is signed. For instance, it can never be found that any provision within a postnuptial agreement that is related to creating a maximum level of child support is ever valid.

The best explanation as to why this is the case would be that your circumstances will change over time, as will your child’s. There is no way that you or your spouse can predict what needs your child will have- especially if that child has not even been born yet. If you are trying to insert language into the agreement that declare one of you as the future primary conservator, this also will not be allowed. Nobody can predict which parent would be in a better position to be named as the primary conservator of your child. Since there is no way to accurately predict what will be in a child’s best interest in the future, courts will not allow you to include much of anything in regard to your child within a postnuptial agreement. 

More on child support and postnuptial agreements

The Texas Family Code specifically states that your children’s right to receive child support cannot be affected negatively by a prenuptial agreement but does not state anything regarding a postnuptial agreement. A good rule of thumb to operate under, however, is that no contract that could be construed to operate against the best interests of your children can be held to be enforceable. Only contracts that benefit your children are enforceable under Texas law. 

So how does this apply to any provisions you intend to insert within your postnuptial agreement? For starters, I wouldn’t bother including anything in the agreement unless it expressly benefits your child. For instance, if you attempt to limit you future liability to pay child support, college expenses or anything of the like then you can safely assume that it will not be held as enforceable. On the other hand, if you promise to pay a certain amount of child support or college expenses then there is a chance that provisions like this will be found to be enforceable. 

For the most part, it is pointless to attempt to set a specific amount of child support to be paid in the future should a divorce occur. As I mentioned earlier, these type of provisions cannot accurately predict the amount of care that your child will need. I would save these issues for the divorce and not bother negotiating on them in the postnuptial agreement. 

What can be done regarding children from a prior marriage?

If you have children from a prior marriage and have property that has already been promised to them as part of an inheritance, you can specify in your postnuptial agreement that certain parts of your community estate are to be treated as your separate property. This will allow you to have your will reflect your wishes if you were to die while married to your current spouse. 

What is the bottom line here?

I keep raising points that show children can be incorporated into postnuptial agreements, but generally speaking I do not think that children should be a part of yours. Life comes at your fast, marriages begin and marriages end. Your frame of mind and the circumstances of your life change. With that in mind, the purpose of a postnuptial agreement is to not allow those changes to impact the way you want your assets and debts to be handled in a future divorce. 

While this is ok for property and debts it is not ok for children. Your child, while ok right now, could develop a sickness or impairment that requires around the clock care. While I pray that this will never happen to your family- it could. To limit the amount of care that you or your spouse would be obligated to pay towards the raising of a disabled child is unconscionable. It’s not what you would want or what your spouse would want. Arguing that the likelihood of something like this happening is so low is not a good response, either. 

Final thoughts on post nuptial agreements

There are a lot of moving pieces associated with postnuptial agreements. By negotiating with your spouse when you are on good terms with one another you are bypassing more painful negotiations while in the midst of a divorce. You want to have an attorney by your side not only to help you plan for the negotiations but to help you execute on that plan during your negotiation day. 

Finally, you want that agreement to be drafted well and to reflect the intent of you and your spouse. The agreement must be enforceable in court or else it is not worth the paper that it was printed on. Hiring an experienced family law attorney to represent you is a smart play. With as much as is at stake in the process of drafting a postnuptial agreement you want to be able to walk away from it feeling like you did something positive for yourself and your family. Avoiding mistakes is the best way to do this and having an experienced family law attorney by your side is a great advantage to have. 

Questions about postnuptial agreements in Texas? Contact the Law Office of Bryan Fagan

If you have any questions about the content of today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to answer your questions and set you up with a free of charge consultation. These consultations are a great way to have your issues addressed directly by an experienced attorney. We thank you for joining us today on our blog and hope you are back tomorrow when we post another blog for you to read and learn from. 

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