Previously, we focused on the flexibility and control a well-drafted and thoughtfully negotiated premarital agreement can provide. Still, the spouses may wish to make changes to their agreement after they have been married. They may decide to revoke their agreement.
Can a premarital agreement be changed or terminated after marriage? Yes, so long as all the formalities are followed. Spouses may revoke their agreement. Doing so restores their marital rights under the law and puts them back in the position they would have been in had there been no premarital agreement at all.
Just as the premarital agreement must be in writing, any modifications or revocations of the premarital agreement must be made in writing and must be signed by both spouses. No matter how many times the conversation surfaced over the years, verbalizing a mutual desire to cancel the contract does not make it happen.
Mutual countervailing actions are also insufficient to revoke a premarital agreement. For example, the spouses' decision to use separate funds to satisfy the mortgage on their marital home does not, in and of itself, terminate the premarital agreement—Even if it provides that separate property shall never be used to pay community debt. As a rule, neither oral modifications nor oral revocations are valid.
Texas Family Code Section 4.005 controls amendments and revocations of premarital agreements:
"After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration."
Spouses who have been married for years might want to amend, revoke, or replace their old contract with a new agreement. For example, if the economically-dependent spouse will not get a fair benefit upon divorce or probate, this causes strife. The parties may want to amend their premarital agreement. The law controlling the premarital agreement is statutory, that is, amending a premarital agreement after marriage does not transform it into a postnuptial agreement. Those are two different instruments held by two separate bodies of law.
Assuming no divorce or legal separation is pending in court, the spouses could choose to substitute their premarital agreement entirely with a postmarital understanding. Couples who never had a premarital agreement may want to talk to a family attorney about a postnuptial deal.
Post Marital Agreements in Texas
In Texas, spouses may enter into a postmarital agreement that covers similar territory as premarital agreements such as categorizing and dividing property and trusts. They are creating a postmarital agreement (Partition and Exchange Agreement), which is governed by a different part of the Texas Family Code than the premarital agreement. Although similar in some ways, they are also different.
Partition and Exchange Agreement Formalities
First, under Texas Family Code 4.203, a postmarital agreement (Partition and Exchange Agreement) must:
- be in writing
- be signed by the spouses
- identify the property being converted
- specify that the property is being converted to the spouses' community property
- be enforceable without consideration
- is enforceable without consideration.
A postmarital agreement might better reflect the spouse's current reality and address areas of continuing conflict. The spouses may now have minor children, work full-time in independent careers, have accumulated substantial assets, and have various business interests.
Circumstances can change throughout a marriage. A postmarital agreement can help spouses keep pace with their lifestyles. Given the most cited reason for divorce is arguments over money, being proactive and reasonably addressing difficult issues with a postmarital agreement may help the couple avoid further matrimonial disputes.
Spouses are free to substitute their premarital agreement with a valid superseding deal. One that provides more equitable terms and covers aspects of marriage that were not anticipated before the wedding.
Postmarital agreements may address many personal financial matters, including:
- Division of assets and debts in the event of divorce or separation
- Provision of spousal support
- Contribution to a child's college trust or added support beyond Texas guideline child support
- Payment of the family's vacation and travel expenses
- Supporting an adult family member with chronic illness or disability
- Control of the family business
- Inheritance as sperate property despite being commingled with marital assets
- Allocating responsibility of specific obligations during the marriage, such as bill or property taxes
When separated or if a divorce is pending, spouses may no longer be on the same page regarding their premarital or postmarital agreements. These and other serious concerns could be settled through divorce negotiations with a private mediator. Before taking action that may cause regrets later, discuss legal alternatives with a lawyer.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are 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, 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.