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Frequently asked questions about prenuptial agreements

The decision to get married is probably the most consequential you will ever make your life. As a family law attorney, I can't tell you how important it is for you to be able to choose a life partner who shares your goals, ambitions, and perspective. Your spouse is the person that you will raise children with, build a life with, grow your wealth with, and spend your time productively. Even if you are the most decent person on earth you will not be able to overcome being married to a person who does not share your goals or does not display any willingness to work with you in raising your kids or doing much of anything else. 

I received questions all the time about how young couples, and the not so young, can't prepare for married life once they become engaged. This is a very important question because it shows that these folks are thinking ahead. Planning with some intentionality towards achieving your goals is crucial. Nobody wanders into success. You don't hear The Super Bowl-winning quarterback mutter to a Reporter after the big game that he walked off the bus and showed up to the stadium and suddenly won the Super Bowl. No, achieving any goal of size requires proper planning and intentionality. 

This is true even in marriage. You may not consider marriage or having a successful marriage to be on par with winning a Super Bowl but for you, in your life, I believe it is. Very few of us will ever win a Super Bowl but we all have an opportunity to lead happy, content, and productive lives. When it comes to being married some issues and circumstances can derail an otherwise promising relationship. What if you could short circuit some of those potential problems and avoid them altogether? 

Despite what many people think, the world of family law is not designed to tear marriages apart. Rather, the world of family law allows for several ways for family units to be strengthened starting with the marital relationship. As the old saying goes the best time to have planted a tree was 10 years ago but the second-best time is today. Whether you have been engaged for 10 minutes, 10 months, or have been married for 10 years there are ways for you to improve the quality of your marriage through proper planning. 

I think one of the more useful techniques to help couples in planning before and during their marriage from a financial perspective is via property agreements. Both premarital and marital property agreements allow people just like you to plan for the future, work with their spouse to avoid problems, and identify potential areas of concern before they become full-blown problems that can derail an entire relationship.

Embrace the changes that come along with married life

Whether you believe it to be true or not, the decision to get married will bring about changes in your life. While most of us do not adhere as strictly to the traditions of our forefathers as far as living separately from partners before marriage, etc. actually getting married and living together as husband and wife can bring about emotional as well as financial challenges that many people do not anticipate when they are engaged. Something about the permanency of marriage and the idea that your fates as individuals are now tied together seems to bring about stressors that maybe did not exist while you were dating or even engaged. 

Money fights and money problems are among the leading causes of divorce in our country and around the world. It is easy enough to see why that is. Just think about what you have experienced in your own life as far as your finances during this pandemic. We have enough data out there to be able to tell us that very few among us have found greater financial success during the pandemic than before it. Just playing the numbers and percentages it is likely that you have suffered somewhat from a financial perspective as a result of the coronavirus and the government LED shutdowns of the economy. 

For that reason, I would recommend that if you are engaged or considering marriage to think about where you stand from a personal financial standpoint but also where you and your partner stand in terms of shared goals and aspirations when it comes to financial matters. Just because you will generally share similar perspectives about money or even have an occasional discussion about investing or your futures that doesn't mean that your finances will align perfectly once you are married. If you have never even considered sharing financial information or what will happen after your marriage as far as transparency with your finances then now is a great time for you to consider making a change. 

I have been able to witness many married couples make great transformations in their lives simply by becoming intentional about how many acts with money and their spouse. Without a doubt, one of the things that almost surely will provide you with a glimpse of what married life will be is creating a budget with your partner before your marriage. I'm not saying to combine your incomes or share bank accounts but I am saying that it may be wise for you to sit down and try to create a budget based on a hypothetical shared income and household. 

If you have any problem with committing to do this, if communication during the budgeting session becomes heated, or if it seems that one or both of you are uninterested in the suggestion then you may need to consider other options to work through problems that you have with finances and money in general. It may sound silly, but I think if you can successfully budget with your fiance and learn to develop shared money goals that you can overcome just about any obstacle you face in marriage. 

If you have doubts about your ability or willingness to engage in this kind of activity then I might suggest that you seek other means to improve the trajectory of your relationship and the chances of success in your marriage. I realize that it may sound silly or outright wrong to call a family law attorney to strengthen your relationship with your spouse or fiance but I think that is a good next step for you and your partner if you find yourself in these types of circumstances. 

Marriage changes how you and your property relate to one another 

before getting married, your relationship with the property that you own in the income that you have earned has been pretty straightforward. You go to work, you earn a paycheck, you buy a car, he buys a house or you accumulate some debt. This should sound pretty standard for most Americans like ourselves. whether it is an asset that you own or a debt that you have in curd all of it belongs to you. You become responsible for making payments on debt and you can grow well and obtain assets through investing and spending. 

Even if you “play house” with your boyfriend or girlfriend the law does not treat your relationship as anything other than being roommates with that person. In your heart, you may feel like your relationship has been taken to the next level or has progressed to a point of approaching marriage but the law doesn't seem to hit that way. This means that if you are making payments on your girlfriend's car note or she is helping you pay down the mortgage on your house that this is an act of charity and no ownership is conferred one way or the other. 

Getting married changes that. The law in Texas provides for protections for married persons who contribute financially to the benefit of their partner. Many people do not know that the state of Texas requires spouses to provide for one another from a financial and practical standpoint. By combining your incomes, making good decisions regarding finances, and tackling financial goals together you are fulfilling the obligations that you owe to one another not only from a spiritual or emotional perspective or from a legal perspective as well. 

Texas is a Community property state. This means that property and debts that are accumulated during your marriage are considered to be owned in full both by you and your spouse. For example, if you purchase a house during your marriage it does not matter if that house was not purchased with any income of your spouses or if their name is not on the note or deed to the home. Rather, as long as the income utilized to purchase the home was earned during your marriage then that home is considered Community property. In other words, it is just as much your spouse is home as it is yours even if she or he did not contribute a dime to the down payment or monthly mortgage payment.

It is presumed, at the time of death or divorce, that all property owned by spouses is a community in nature. Of course, likely, you and your spouse entered into your marriage with the property at the other one had nothing to do with its purchase or the obtaining of the debt. In that case, these assets and debts R called separate property and will stick with you or your spouse after the divorce. All you would need to do if challenged on the separate versus community nature of the property in a divorce would be to present evidence showing when the debt was in curd or when you obtained title to the asset. 

As you can tell, getting married may not feel much different than being engaged or being in a dating relationship but the law doesn't see it that way. If you own a significant amount of separate property, I want to small business, want to protect your partner from being responsible for any debts you have in curd don't have anything unique about your finances then you may want to consider a premarital property agreement. these documents, otherwise known as prenups, have sometimes gotten a bad rap in our culture as being utilized only by the rich or the greedy. However, as a married man myself and a regular person just like all of you, I can tell you that the perception of prenups does not match their reality. 

What are pre-marital property agreements? 

Marital property agreements R negotiated upon a contract between two people who are planning on getting married. A pre-marital property agreement covers only matters regarding property and debts. It can cover topics like spousal maintenance in the event of a divorce but it cannot cover topics like child support or any issues regarding child custody. A pre-marital property agreement would not have any importance or go into effect unless and until you and your fiance get married. Until then come up it is not worth the paper that the agreement is printed on. 

Premarital property agreements are frequently negotiated upon by people just like you with the assistance of experienced family law attorneys. It is recommended that both parties hire an attorney to represent them and their interest. For example, if your fiance were to hire an attorney to help guide him or her in the drafting and negotiation of a Premiership property agreement then it would be a good idea for you to do the same. There is nothing illegal about going into a negotiation session without a lawyer but it will be a conflict of interest for you and your fiance to be represented by the same attorney. 

The other issue that you want to consider when it comes to negotiating in drafting a premarital property agreement is that the document needs to be an enforceable contract for it to be worth your time and effort in negotiating upon it. If there is something about the document that is faulty or that a court cannot enforce in the future then you will have spent time and money and produce no benefit for your marriage. Both you and your fiance having attorneys during the drafting process greatly increases the chances that a family court judge will enforce its terms in the future. 

When do you become responsible for your spouse's debts?

It seems that we are more prone to taking on substantial amounts of debt than our parents or even our grandparents. There are probably a lot of reasons for this but the reality is that debt is a part of most of our lives. Many people who plan on getting married have concerns over their fiance having to incur responsibility for paying a debt that they had nothing to do with. Some people may even delay or shy away from getting married because of debt concerns. 

If the debt in question is a credit card or mortgage loan then your separate property or a joint bank account held with your spouse will become liable for that debt. For example, if you own a separate property investment account or a shared checking account with your spouse once you are married then either of these accounts become eligible for accreditor to tap into for the failure to pay according to the terms of your promissory note. However, if your spouse owns a bank account that contains community income but does not also bear your name that account is not liable to pay for a separate property debt of yours. 

The other major type of debt that we see owed from person to person in our world are torts such as personal injury claims. If you injured a person due to negligence in a court rendered a judgment against you your separate property and all Community property owned by you and your spouse are in play to satisfy that judgment. This includes community held accounts that bear only your spouse's name. However, you are spouse's separate property would not be eligible for paying on a judgment based on a tort claim. 

Closing thoughts on premarital property agreements 

Although it may strike you as being untrue, I think discovering potential shortcomings in your relationship before getting married can be a healthy thing for you and your partner. Many of us would prefer to sweep under the rug anything unpleasant to discuss. And what I have learned through my years as an attorney is that we all only have so much rug space to have undesirable things swept under. 

At a certain point, those undesirable elements of our lives are going to start to creep out for the whole world to see. Negotiating and drafting a pre-marital property agreement can go a long way towards helping you and your fiancé avoid problems in your marriage and transition into a new state in your life more readily.

if you have any questions about the material contained in today's blog post that I recommend you contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations can go a long way towards helping you and your family sort through problems, plan for the future and understand how your circumstances may be impacted by child custody, divorce, or other scenarios under family law

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