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 who get prenuptial agreements typically want to plan and consider the end of their marriage to avoid surprises and difficulties 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. Still, 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 is on the best of terms. For many people who go through a divorce, this may be an understatement. You and your spouse have something in your marriage, your relationship, or elsewhere that is a big problem for you all. The only way that the problem can be solved is through a 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 working with your spouse to end the marriage and crisis solving and thinking logically during this difficult time. You may be the most logical and rational person 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 a successful marriage a partnership. With that said, you all need to have the maturity, patience and thought to plan your way out of your relationship.
The thought that many people have when it comes to exploring the opportunity to negotiate a prenuptial agreement is that you and your spouse will be on better terms before your marriage begins than 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 agree to end the marriage. Rather than go through the difficulties associated with negotiating a failed marriage with a person you are not happy with, it is wise 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. Still, I want to focus on two pieces that I think are extremely important and probably not immediately recognizable for those that don’t deal with family law matters daily as we do. The first aspect of successfully negotiating a draft of a prenuptial agreement is that you need 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 you are asking for something terrible to happen if you prepare a prenuptial agreement or draft a will. These people don’t have a particular reason for feeling this way. Still, whether it’s I’ve got instinct or superstitious belief, the result is that people hesitate to engage in these types of negotiations because they believe that something terrible 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 will all die at some point. I hope I am not shocking you by telling you that it is obvious and does not deserve much. 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 that clients have a will drafted after their divorce either to take the place of an old choice 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. It is the ultimate safety plan for your marriage if a divorce becomes a reality. If you and your spouse never get divorced, then the prenuptial agreement will have no legal effect. If you pass away and want to have special provisions on how property is passed upon your death, it may come into play. 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 to have a prenuptial agreement drafted is being intentional with your actions. Intentionality means thinking through your circumstances and making decisions that are the best for yourself and 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 choices that you or these folks have made, the decision was made, not intentional.
Being intentional does not take a great deal of brainpower. Still, 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 regarding 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 walk into a free nuptial agreement. Engaging in negotiations on a free marital agreement is a wise thing to do and shows that you and your spouse can be 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 precisely the type of subject matter that many people going into a union would push to the back of their lives and not 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 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 obligations to be concerned with. Still, 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 knowing the ends and outs of their life. This is an unfortunate arrangement and does not give much confidence that the marriage will survive rugged 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 consider anything regarding your children or their livelihoods after the divorce. Suppose that you all have a child with a disability or a particular need, but you do not plan for that in the prenuptial agreement. It would be unconscionable to refuse to pay additional child support, for example, a child who has a particular need just because you had agreed 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, regarding issues like property in debt distribution upon your divorce in a prenuptial agreement is a terrific vehicle to have in place to divide up responsibilities at the end of your marriage. You all will know for sure just how the chips will fall if he were to get a divorce. Neither of you needs to spend a sleepless night worrying about what deaths will fall onto your shoulders or how your property will be divided between a trial or mediation situation. Instead, 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 focus on doing 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 an excellent way for you to learn more about Texas family law and our law office’s services to our clients. I appreciate 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.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
