Prenuptial agreements can have significant benefits for most anyone who is thinking about getting married. The simple truth is that many marriages unfortunately do end in divorce and as a result there are a lot of loose ends to tie up before your marriage could be declared at an end by a family court judge. Not only that, a prenuptial agreement can actually help you and your family better communicate regarding issues surrounding finances, property, assets, debt and other financial issues. Let's go through each of these subjects and show you just what I mean in greater detail.
Why not negotiate with your spouse to be prior to your marriage?
One of the big misnomers about a divorce is that your case is likely to end up in family court. A divorce case is as unlikely to go before a judge as just about any outcome in the law. While it is true that family law attorneys tend to spend a great deal of time in court it is very infrequent that a family law attorney will have a trial on a divorce case. The reason for this is that most every family court in Southeast Texas will require you to attend a session of mediation with your spouse in order to determine whether or not a settlement to your case is possible. I have even seen some judges require parties to mediate their case more than once just to make sure that there is no possible way for a settlement to be reached.
With that said, a divorce in Texas is much more about negotiation than litigation. Meaning: you need to become comfortable with the idea of working with your spouse in a divorce to finalize your case. While it is likely that you both will have attorneys to assist you in this process, the most functional divorce cases that I've been a part of see the spouses themselves able to tolerate direct communication about the issues in their case and are willing to work with the other person through their attorneys to negotiate the rest of the matters. This should tell you a couple of important things about your marriage and the prospects of a future divorce.
For one, you need to be aware that many people going through divorce our unable to not only communicate well with their spouse but also to think clearly. You may think that you will have some sort of clearness of mind associated with your own divorce case but I can tell you from experience that it is unlikely that you will be at the top of your game from a mental perspective during your divorce. There is something about the stress, anxiety and distractions that come along with the divorce that cause people to lose a certain degree of mental acuity. That is important to keep in mind because you will need to plan ahead for any problems that arise in your marriage so that you will be well equipped to do you want them in a way that is as advantageous to you and your children as possible.
The second thing to keep in mind regarding the need to negotiate through the issues in your divorce is that if you cannot think clearly and are obviously having problems in your marriage then it is best for you to be able to work with your spouse before you are even married on going through the many issues that are a part of your financial lives. Let's spend a little bit of time discussing with those issues might be and how it could be in your favor to discuss them even before you say your “I do’s.”
Texas is a community property state in the laws of community property will determine how your marital property is divided and community a state is divvied up between you and your spouse. This is not something that should scare or intimidate you but it is something that should cause you to keep in mind that the stakes of your divorce will be high even if you lead a relatively simple life from a financial perspective. Your retirement benefits, savings, investments, any real estate you own including your home as well as the debts that both you and your spouse have in curd will be subject to division in the divorce.
You should take from this in importance on being able to work with your spouse to not only talk through the issues of your life but to determine the best way possible to move forward from them in terms of your family case. Do not assume that just because you are negotiating prenuptial orders that you will necessarily get a divorce. Keep in mind that by drafting a will with your spouse you are not saying that both of you are going to pass away as soon as you sign on the dotted line of that document, either.
Rather, a prenuptial agreement is a rational, reasonable and mature response to the realities of modern life for many married people. I would take the opportunity before you are married to work with your spouse to be while you are on very good terms in order to figure out how a division of your marital property will look once you get married and eventually a divorce could be necessary. You do not need to be concerned with not preparing any language in the document for your children since issues regarding your kids are largely off limits in a prenuptial agreement.
Rather, your prenuptial agreement will almost certainly encompass only financial matters and will give specific instructions on how to handle certain categories of your financial lives. It is impossible to determine where your financial life will go between now and a possible end to your marriage. However, you can take the time to plan these things up thoroughly while your mind is clear, and you are on good terms with your spouse. This is as opposed to handling these matters while you are involved in a time consuming, emotionally driven, in overall difficult divorce with the person that you are on poor terms with.
Every person in a marriage needs to be able to make decisions along with their spouse on how to prepare four major events in your lives. One of the things that I can tell you is that very few people who go through with a prenuptial agreement come out the other side and regret having done so. On the contrary, being prepared and vigilant about protecting yourself and your spouse as you head into a marriage can be a great way for you to work on issues and communication. That is what I would like to closeout today's blog post by discussing.
The process of negotiating the prenuptial agreement can help you and your fiancé with communication
the other major benefit to drafting and negotiating a prenuptial agreement with your spouse to be is that doing so can help you with communication as you head into your marriage. No matter how close you and your fiancé are and no matter how much you communicate on the issues that impact your lives I have very rarely met people who have communicated all that well with one another when it comes to their finances. Not only is it a fairly dry subject and not overly interesting but it is a deeply personal one and for many of us a subject that we would rather not discuss with anyone. This could be because you are not proud of the financial decisions you have made or have other hang ups associated with talking about money.
This is not at all uncommon given that many of us do not grow up in households where money is a subject that is discussed very much. When money is discussed in many households it is often in a negative light and with connotations that are not beneficial for the people involved. It's almost like we discuss money only when we have two and only one times are bad. Rather than carry over these bad habits into your new marriage you can use your prenuptial agreement discussions to springboard yourself into better communication skills as young newlyweds.
For instance, if you go through any kind of marriage or pre marriage therapy the counselor will oftentimes have you and your fiancé create a budget for your lives after you are married. This accomplishes two things. The first thing that it accomplished is is that it will force you and your spouse to work together and communicate on a shared goal. It is thought that if you are able to communicate about a subject like money then there is no end to what you and your fiancé will be able to talk about, good or bad. The other thing that budgeting with your fiancé will do is it will force both of you to be honest with one another about your insecurities surrounding money, your income, your debts and many other subjects that could potentially harm you in marriage.
A prenuptial agreement is a lot like drafting a budget but even more detailed. You will be forecasting your financial lives together and will be dividing up your marital property in such a way that is fair and practical for both of you. Any misconceptions that either of you had heading into the marriage from a financial perspective will likely be answered in this process. You do not need to look at the drafting number prenuptial agreement as something purely functional or analytical. Rather, there are emotional and relational aspects to drafting these documents and if you believe that you and your spouse could benefit from doing so then you should bring up the subject directly with him or her and share your thoughts.
Finally, negotiating and drafting a prenuptial agreement will cause both of you to stop where you are and listen to the other person. Rather than assume things about the other person or have unanswered questions as you head into marriage you can answer any questions and put to bed any doubts but you had about the other when it comes to your goals for the marriage and what your financial picture looks like in relation to those goals. This is especially important if you and your fiancé are coming from different positions as far as money is concerned.
For example, if you are going to be entering into the marriage with a great deal of debt and you are concerned about your spouse ending up with portions of that debt in a divorce then you can take note in your prenuptial agreement that particular portions of your estate are to remain yours separately even if the law would hold them to be community debts otherwise. Yes, debts that you enter into the marriage with would normally be considered your separate debt period however, it is conceivable that you could bring up more debt on a credit card home equity line of credit or other type of financial instrument that could potentially count as community property, as well.
If you know that your financial habits or a financial responsibility of yours could end up impacting your spouse to be in a negative way and you can protect him or her by the drafting of a prenuptial agreement. Far from being a selfish action, a prenuptial agreement can actually be one of the more selfless things you do for you and your fiancé.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
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 charge consultation 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 and can also help you to understand more in detail how our attorneys and staff are here to assist you and your family in whatever family related matter is currently ongoing in your lives.