A prenuptial agreement is a binding contract unique in law. It is an extraordinary agreement for two very special people. The word "prenuptial" refers to the premarital status of two individuals preparing to marry each other. The Texas family code refers to them as "premarital agreements" and not "prenuptial agreements."
A prenuptial agreement is only possible when made between prospective spouses in contemplation of their marriage. Getting married is a material condition! The Texas Family Code Section 4.004 says that premarital agreements are effective upon marriage, but not before.
Many questions may arise that were not originally contemplated when the agreement was drafted. For example:
- What happens when the wedding is postponed after the contract is signed?
- What if the marriage is called off permanently?
In such cases, to be sure, the couple may want to ratify their agreement in writing to revive it and ensure enforceability. If the wedding is called off permanently, the prenup is unenforceable.
A similar agreement is known as post-nuptial agreements (or post-marital contracts), which handles identical issues between couples after marriage. A post-nuptial agreement has its origins in a prenuptial agreement.
Prenuptial Agreements are Not a New Invention
Prenuptial agreements are not a new legal invention. Marriage contracts have been around for centuries. However, in the United States, most of the courts in this country held that "contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy." With the Florida Supreme Court's landmark decision in Mr. and Mrs. Posner's divorce, Posner, 233 So2d 381 (Fla. 1970), that perspective began to change.
The Posner court held the opposite was true. That antenuptial agreements (or prenups) promote the public policy of encouraging marriage. Prenuptial agreements do this by:
- settling property and alimony issues before a wedding taking place.
- In many cases where there is wealth disparity between the couples
- Without a prenup, a marriage of economic extremes may be less likely to take place
Although it took almost two decades, Texas adopted a version of the Uniform Premarital Agreement Act, which became law in this state in 1987. The Statute is found under chapter 4 of the Texas Family Code.
Drafting a prenup to withstand legal challenges when it matters upon divorce or a spouse's death is not a do-it-yourself project. In the event of a divorce, some agreements specify:
- the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- the modification or elimination of spousal support;
- the making of a will, trust, or another arrangement to carry out the provisions of the agreement;
- the ownership rights in and disposition of the death benefit from a life insurance policy;
- the choice of law governing the construction of the contract; and
- any other matter, including their rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
The right of a child to support may not be adversely affected by a premarital agreement.
Understand that Texas law is intended to generally encourage marriage, unify expectations, and help the relationship work more smoothly. Given roughly first marriages and more than 60% of all second marriages end in divorce, having a prenuptial agreement can ease marital dissolution's financial complexities by making divorce proceedings significantly less arduous, both emotionally and financially. The same can be said of prenuptial agreements in probate proceedings following a spouse's death.
Prenuptial agreements are not for everyone. Some people view them as unromantic and pessimistic. They are twisting the wedding vow to cherish one another "until death does us part" into a cold-hearted exit plan.
Others view premarital contracts more pragmatically, mainly when the marriage introduces children from a previous relationship. The more affluent of the two parties may reasonably prefer the security of a known outcome in the event of death or divorce. The prenup may be an essential ingredient to a successful marriage to that individual (perhaps a wealthy retiree or business owner).
Regardless, prenuptial agreements must always be voluntary.
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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 essential 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 the 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.