When some people hear the term prenuptial agreement, we automatically think of one thing: divorce. This is a reasonable reaction in some ways because, yes, a prenuptial agreement does anticipate the end of your marriage. Whether the end of that marriage comes by divorce or death people that get prenuptial agreements typically want to plan ahead and consider the end of their marriage in order to avoid surprises and difficulties that are associated with either of those events. Since we are a family law office here at the Law Office of Bryan Fagan, I will write about prenuptial agreements today from the perspective of a divorce attorney.
Something to keep in mind when it comes to prenuptial agreements is that they are not necessarily something that will cause a great deal of anxiety or anger in two people. The concept of a prenuptial agreement has a lot of negative publicity surrounding it but for the most part I can tell you that the people who enter into prenuptial agreements do not do so out of greed or anger or anything negative. What these folks tend to want to do is avoid problems at the tail end of a marriage that could otherwise be solved by negotiation on the front end. If you stop and think about it this is a very reasonable goal to have is imminently possible with some planning and forethought.
Think about it like this: when you are getting a divorce neither you nor your spouse are on the best of terms. For many people who go through divorce this may be an understatement. You and your spouse have something in your marriage, in your relationship or elsewhere that is a big problem for you all and the only way that the problem can be solved is through divorce and ending your marriage period you have likely attempted some degree of reconciliation whether that be through communication directly with one another or through a counselor. When those options have failed to produce a resolution to your marriage the next step would be to get a divorce.
What comes along with the divorce is usually some degree of problems when it comes to not only working with your spouse to end the marriage but also problem solving and thinking logically during this difficult time. You may be the most logical and rational person that you know under normal circumstances, but I can assure you that a divorce is not that. A divorce is an abnormal circumstance involving you and your spouse ending what had been a successful marriage a partnership. With that said you all need to be able to have the maturity, patience and for thought to be able to plan your way out of your relationship.
The thought that many people have when it comes to being able to explore the opportunity to negotiate a prenuptial agreement is that you and your spouse will be on better terms before your marriage begins then you will be at the time of your divorce. This goes without saying. Just about any point in your relationship will be better than the time that you all are agreeing to end the marriage. Rather than go through the difficulties associated with negotiating on a failed marriage with a person you are not happy with it is wise to be able to think ahead, when possible, and avoid disagreements that come up during the divorce process.
What does it take to create a prenuptial agreement?
There are two parts to being able to do negotiate and create a prenuptial agreement. In actuality, there are more than two parts, but I want to focus on two parts that I think are extremely important and probably not immediately recognizable for those that don't deal with family law matters on a daily basis like we do. The first aspect to being able to successfully negotiate a draft a prenuptial agreement is that you need to be able to have some degree of maturity when it comes to recognizing the potential for divorce or death in your marriage. While nobody likes to dwell on either of the subjects it is entirely possible that you could get a divorce and if not a divorce then death would certainly end your marriage.
Doing a prenuptial agreement with your fiancé is similar to drafting a will in some regards. I have spoken to more than one person who feels like if you draft a prenuptial agreement or draft a will you are asking for something bad to happen to you. These people don't have a particular reason for feeling this way but whether it's I've got instinct or superstitious belief, the end result is that people hesitate to engage in these type of negotiations because they believe that something bad will automatically happen if you even think about one of these scenarios.
I am here to tell you that this is not the case at all. For one, whether you have a will or not the simple truth is that we are all going to die at some point. I hope I am not shocking you by telling you that, but it is patently obvious and is not something that even deserves much mentioned. We all will pass away from something at some point and you had better be prepared for that event. This is why we will recommend to clients that they have a will drafted at the conclusion of their divorce either to take the place of an old will that no longer reflects their current circumstances or to have a will drafted for the first time.
While there is no guarantee that your marriage will end in a divorce, and hopefully it will not come to that, having a prenuptial agreement in place is not necessarily a bad idea at all. In fact, it is the ultimate safety plan for your marriage if a divorce becomes a reality. In the event that you and your spouse never get divorced then the prenuptial agreement will have no legal effect. It may come into play in the event that you pass away and want to have special provisions on how property is passed upon your death. In all likelihood, however, you will have a will that does this for you. So, the prenuptial agreement will almost certainly only impact your marriage if you and your spouse get divorced.
The other key characteristic that you and your fiancé need to have in order to have a prenuptial agreement drafted is the ability to be intentional with your actions. Intentionality means thinking through your circumstances and making decisions that are the best for yourself and for your family. Think about the people in your life and the decisions that they have made regarding any subject in particular. I can almost promise you that, when it comes to the bad decisions that you or these folks have made, the decision was made due to not being intentional.
Being intentional does not take a great deal of brainpower but it does take a great deal of willingness to think through problems that you encounter and be deliberate about this a decisions that you make peering if you have circumstances in your relationship where you want to control how property is divided in a divorce than a prenuptial agreement is a great way to do so. You can bypass traditional norms when it comes to community property and arrive at conclusions that work best for you and your spouse. Considering a prenuptial agreement in and of itself is a very intentional thing to do. You can wander into a divorce, but you cannot wander into a free nuptial agreement. Engaging in negotiations on a free nuptial agreement is a wise thing to do and shows that you and your spouse are capable of being intentional.
Going through the process of drafting a prenuptial agreement causes you and your spouse to think critically about the parts of your marriage that might otherwise be unpleasant to do so. It is human nature to want to sweep under the rug things that are unpleasant to think about. The end of your marriage, money problems, property, debts and other subjects are exactly the type of subject matter that many people going into a marriage would push to the back of their lives and not really give much thought to. This can be dangerous because what you don't deal with now tends to become more of an issue later on.
As a result, you may enter into your new marriage with problems that could have been solved at a certain point but were not solved and instead became worse. For instance, what if you and your spouse to be figured out that you have a fundamental difference when it comes to your finances? Suppose that you were the type of person who wanted to pay off all of your debts before your marriage so that you entered into your wedding with no debts to be concerned with but you're Beyoncé did not hold this position and instead was entirely comfortable with maintaining all of your debt throughout the marriage? Not only would this be a good thing to discover before you were married but you may never have figured it out but for the discussions you had regarding your prenuptial agreement.
The prenuptial agreement evidence is a certain degree of trust between you and your fiancé. I know of married people who do not trust each other enough to discuss the details of their personal lives with one another. These are people who keep their finances separate and do not hold much faith in the other person being able to know the ends and outs of their life. This is an unfortunate arrangement and does not give much confidence that the marriage will be able to survive difficult or rocky parts.
Enter into your marriage with no reservations
A prenuptial agreement allows you and your spouse to enter into the marriage without having any concerns over what will happen upon your divorce. Yes, a prenuptial agreement cannot take into account anything regarding your children or their livelihoods after the divorce. Suppose that you all have a child who has a disability or a special need, but you do not plan for that in the prenuptial agreement. It would be unconscionable too refused to pay additional child support, for example, to a child who has a special need just because you had made an agreement in a prenuptial setting. As a result, the law in Texas does not allow negotiation and settlement on child support before children are born.
However, in regard to issues like property in debt distribution upon your divorce in prenuptial agreement is a terrific vehicle to have in place in order to divide up responsibilities at the end of your marriage. You all will know for certain just how the chips will fall if he were to get a divorce. Neither of you needs to spend a sleepless night worried about what deaths will fall onto your shoulders or how your property will be divided in a trial or mediation situation. Rather, you will know exactly how these situations will play out because you made a mature determination on how they should proceed ahead of time. That leaves you with plenty of time and energy to be able to focus on making the marriage work.
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 of 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 Texas family law and about the services that our law office provides to our clients. Thank you for your interest in our blog and we hope you will join us again tomorrow as we continue to share more information about the world of Texas family law.