Have you ever heard of a prenuptial agreement? If so, you likely learned about these sorts of documents from television or movies. The fact is that our culture has taken hold of these documents and created storylines surrounding them to cause us to think that they are nefarious or sneaky in some way. The reality is the Texas families use prenuptial agreements every day to sort through difficult issues that may be a part of their lives.
Just because it works for other people, he may be saying, why is it likely that one would work well for your family? Is a prenuptial agreement a smart decision for you? In what ways could a prenuptial agreement be overturned in the future? How could a prenuptial agreement help you avoid getting a divorce in the 1st place? These are the sort of questions that I would expect you to be asking if you are reading A blog post like this one.
Today's blog post from the Law Office of Bryan Fagan is going to discuss what a prenuptial agreement is, what it can seek to do as far as protecting your family in the future and how it can help you to avoid problems with your marriage. Finally, I will go over a few ways in which prenuptial agreements can be held to be invalid and non-enforceable so that you can try to avoid these problems in your own life.
What is a prenuptial agreement?
A prenuptial agreement is essentially a contract between you and your spouse to be. The prenuptial agreement will contain information and planning for how your community estate will be divided upon a future divorce. You and your spouse do not know whether or not you are going to get a divorce. Only time will tell whether or not your marriage ends in divorce or ends for any other reason.
However, the prenuptial agreement does anticipate that a divorce may occur and seeks to protect the interests of both you and your spouse should you get divorced in the future. An agreement such as this that is created during your marriage is known as a nuptial agreement or marital property agreement. A prenuptial agreement or pre-marital property agreement differs only in that it is created before your marriage. If you and your spouse to be never actually get married then the document has no legal value as a result.
Once you get married the document would seek to detail how your community states will be divided upon your divorce. Now that we have established what a prenuptial agreement is and how it differs from a marital property agreement I wanted to take a moment to discuss with you what Community property is, how it can impact your marriage and what a divorce would cover if your marriage does not last.
What is Community property and how does it impact a prenuptial agreement?
Community property refers to how property is treated between married people at the time of their divorce. All property owned by you and your spouse at the time of your divorce is presumed to be community property. This means that the property is owned completely and in full by both you and your spouse at that time. There is no partial ownership of a house. If it is a community property home then both you and your spouse on the home in full.
This is true whether or not you then your income paid the mortgage, made improvements on the House, or contributed to the house in any way. Income earned during your marriage due to employment is also considered to be Community property. Therefore, the lawn Texas does not distinguish between your money and your spouse's money. Even if both of you deposit your work checks in two separate checking accounts or other savings accounts the law in Texas considers it all to be one contribution to your marital property.
This can be confusing for many people, especially in our day and age where it seems like most couples have separate checking accounts and do not get into situations where the property is shared like it was in years before. Even if you are the spouse who went out and worked from the beginning of your marriage to support your family the law does not treat that money as solely being your own. For many people, this is a surprise it can cause a shift in how you approach the issue of a prenuptial agreement.
Rest assured, there is also a separate property that is honored in Texas. The separate property would be any property that was owned by either you or your spouse before your marriage in addition to property acquired during the marriage by gift or inheritance. In divorce cases, for your case to go all the way to a trial a family court judge would consider the extent to which separate property is owned by either you or your spouse when dividing up Community property between the two of you.
A prenuptial agreement would allow you and your spouse to bypass a division of Community property in the divorce
this is where a prenuptial agreement would come into play. There are two portions to a divorce: one that deals in dividing up Community property and the other that deals in issues related to children. By having agreed previously to a pre-nuptial agreement you and your spouse would essentially bypass any issues regarding Community property At the time of your divorce. This can be a great benefit for many couples like yours who are not in a great place when it comes to being able to think clearly and rationally about the problems in their marriage and how to sort them out in the divorce.
Simply put, you or your spouse would attach a copy of your prenuptial agreement to the original petition for divorce when you first file for divorce. Doing so would allow the family court judge to understand that a prenuptial agreement has already been agreed to in that very little, if anything, would need to be sorted out as far as your Community property is concerned. An enforceable prenuptial agreement between you and your spouse can be one of the most valuable contracts that you ever signed with anyone.
What happens in a divorce when you have to divide up your community property?
There are points in a divorce where the stress levels seem to be the highest and where rationality is hard to come by. The stage of a divorce where you and your spouse begin to negotiate in earnest on your community property division is one of those times. Make no mistake- many parts of a divorce can be stressful and difficult for you and your spouse. However, dividing up the property that you have worked so hard to acquire and save for during your marriage is an especially difficult process for most folks in your position.
I encourage people who are entering into marriage with a substantial amount of wealth, property, or even debt to consider the possibility of negotiating a prenuptial agreement before marriage. This is a good idea for multiple reasons, foremost among them that it allows you and your spouse to negotiate between one another when you are on good terms rather than when you are on bad terms. The stress of divorce causes people to act in ways that they do not intend to. Why not remove the possibility of having to negotiate when you are distracted, upset, or irate at your spouse?
Keep in mind that speaking to your fiancé about your finances before your marriage can be a huge benefit to you both. Many people enter into marriage without a plan on how to attack their financial problems or to plan for the future. I am willing to bet most people reading this blog post do not speak to their significant other on a daily or even weekly basis about where you all are going as far as your finances are concerned. This is not strange- it’s normal. My advice: don’t be normal. Discuss these issues before your marriage.
By discussing the financial issues inherent in a prenuptial agreement before you get married, you are doing yourself so much good. Not only are there all of the benefits that we have already discussed in today’s blog post but you also allow yourself to undergo a form of "pre-marriage counseling." This is especially beneficial if you and your spouse have never been married before. It can be a transition to have to learn how to coordinate your finances with someone when you are used to being able to chart your financial course. Having twice the income will be a welcome change for most folks, but there may be some details that you have to iron out with your finance before feeling fully comfortable with the changes brought about by marriage.
The problems brought about by divorce require you to focus your energy on something that can be extremely uncomfortable for most people. How do you divide up the possessions and property that are most dear to you? What about the debts that you have incurred as a result of dreaming about a future that will no longer come to be? Debt works out for people only when things go according to plan. Unless your plans included a divorce then the debts you have taken out are now likely to become a sticking point in your divorce.
Look at the prenuptial agreement as a means to help you avoid discussing intricate matters of finances that could end up delaying your divorce from reaching its conclusion. If you are a parent then you will likely want to focus as much of your attention as possible on your children. By agreeing to a prenuptial agreement you would be freeing up your time to spend it on issues regarding your kids like child custody, child support, and visitation problems.
How to get a prenuptial agreement started in Texas
The first thing you should considering doing if you are interested in having a prenuptial agreement drafted with your fiancé is to speak to him or her about the subject. This may be simple for some of you who are used to talking about your finances but could prove to be difficult for those of you who shy away from having "tough" conversations. Evaluate your situation and put your big boy/big girl pants on to have a conversation that could be a very fruitful one. You never know until you dip your toes in the water and start the conversation.
Once you have talked through the possibility of having a prenuptial agreement drafted you should each, both you and your fiancé, speak to attorneys about their thoughts on representing you in your negotiations. Some of you may have raised an eyebrow when I mentioned that both of you need to look to hire attorneys. Aren’t you and your fiancé about to get married? Wouldn’t it make sense to collaborate on the drafting of a prenuptial agreement?
The reality of your situation is that your interests are best considered independently of your fiancé’s. What is in your best interests may not be in your fiancé’s best interests and vice versa. Therefore, you should start to investigate which attorneys are right for the two of you. The experienced attorneys with the Law Office of Bryan Fagan are equipped to help guide you through the process of drafting your prenuptial agreement. We offer free of charge consultations six days a week where we can speak to you about your circumstances and walk you through this process in greater detail.
Each of you having your attorney will help in the future if any issues are surrounding the enforceability of the prenuptial agreement. With that said, there are a few tips that you need to keep in mind when it comes to maintaining the enforceability of your prenuptial agreement into the future. However, before we get into any of these tips and tricks we should first talk about why your prenuptial agreement needs to be enforceable in exactly what enforceability is from the perspective of a family law case.
Enforceability of the prenuptial agreement and why that is important
all of the preceding information that I provided you with as far as the benefits of a prenuptial agreement certainly are important. The potential long-term benefits to your marriage, your ability to communicate with your spouse as well as the ability of the prenuptial agreement to make a future divorce much easier are all very real considerations.
With that said, the most important aspect of a prenuptial agreement is that it must be enforceable. Enforceability means that a family court judge could hold you and your spouse to the terms of your prenuptial agreement in the event of a divorce. If the agreement is not enforceable then it surely is not worth the paper that it is printed on. All the work that you did to negotiate the document in the expense that went into it would be for naught.
therefore, you need to make sure that the negotiation process and the drafting of document R up to snuff as far as the legal requirements of a prenuptial agreement in Texas are concerned. The best way to ensure that your prenuptial agreement will pass muster with the judge is to have an attorney for yourself and your fiancé. This will ensure that both sides have independent advice based on your specific situation.
A common way to have a prenuptial agreement thrown out of court is for one side to argue that they were coerced or manipulated into signing the document. If you received undue pressure from your fiancé to sign a prenuptial agreement, then there may be a case for you to make in this regard. However, simply having an attorney to represent you certainly gives the impression, the strong impression actually, that coercion or undue pressure was not part of this process.
Also, if you attempt to negotiate on a subject like a child support or anything having to do with children then those portions of the prenuptial agreement will almost certainly be thrown out and not considered at the time of a divorce. The reason being is that the law does not allow for you to negotiate ahead of time regarding anything with your children. I think the main reason for this is that you cannot anticipate but the needs of your children will be in the future especially if you have not even had children yet.
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 the world of Texas family law as well as about how your circumstances may be impacted by the filing of a divorce or child custody case.