When considering a premarital agreement there is a lot that can potentially lead you astray. The media, television shows, and movies have promoted in recent years a harmful narrative about premarital agreements. In short, the message promoted by these sources revolves around prenups as being for the very rich, very greedy, and those who fall in between those categories. About the least desirable qualities that you can think of when it comes to a married person are being greedy and being money hungry. Our culture leads you to believe that both of these things are true if you are considering a premarital property agreement.
The reality, as I'm sure you can imagine, is quite different from this. Rather than being greedy, money-hungry, or suspicious of your soon-to-be spouse the reason why you may want to have a pre marital property agreement drafted is to protect him or her from various phases of your life that may carry with them some risk. This does not mean that you shouldn't get married or that there are reasons to now rethink your marriage period however when it comes to marital planning a prenuptial agreement can be something that benefits both you and your spouse. However, to get to the point where you can even consider entering into a prenuptial agreement you may have to get past some of these more longstanding beliefs about prenuptial agreements that simply are not true.
What is a prenuptial agreement?
A prenuptial agreement is something more along the lines of a contract than anything else you see in Texas family law. The premarital agreement is created by you and your fiancé if you are not yet married or you and your spouse if you are married. This is the main distinction between a premarital agreement and a marital property agreement. You and your spouse or fiancé can enter one of these contracts at any point before you are divorced. It is not uncommon to see spouses update their pretty marital property agreements multiple times throughout engagement or even the marriage itself. You can think of it as updating your will as circumstances in your life change over time.
With so many people holding outdated or outright incorrect views about prenuptial agreements, I think it is a wise decision for you to invest in experienced and competent legal representation when considering the drafting of one of these documents. The attorneys with the Law Office of Bryan Fagan assist people just like you with great frequency in the drafting of premarital and marital property agreements. To find out more about how our experienced family law attorneys can help walk you through the drafting of one of these documents you can contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week at our two Houston area office locations, over the phone and via video. When it comes to an important subject like prenuptial agreements there is no doubt in my mind that you can stand to benefit from speaking with one of our attorneys about the circumstances of your life and how you may be benefited from the drafting of one of these documents.
A prenuptial property agreement goes through all the property that you own as well as your spouse in addition to any debts allowed by the two of you. Something that I think is relevant to point out at this stage is that simply because you and your fiancé are living together in cohabitating does not mean that you have any shared property or debts necessarily. For instance, just because you are helping your fiancé by helping to assist in their student loan or mortgage payments does not mean that you have any legal liability to pay back creditors on those loans. However, by the same token if you have a loan in both of your names before your marriage then it will be contract law and help us determine your ability up until the point you get married. Legally speaking, living with her fiancé is no different than living with a roommate. There is no expectation of Community property or anything close to it until you get to marriage.
The pre-marital property agreement will state specifically what your property rights will be once a divorce is finalized. The same would be said for your spouse. In this way, you can understand ahead of time what your property rights to certain items are heading into the marriage so there is no question about what will happen at the time of your divorce. This carries with it many advantages that I would like to go through at this time
Negotiate with your fiancé on good terms rather than with your spouse on bad terms
To me, one of the most obvious benefits too negotiating a pre-marital property agreement with your fiancé is that the two of you are on good terms while you are doing so. In many ways, this is so obvious that it should not need to be repeated. If you and your fiancé were not on good terms and why would you be getting married? It is safe to assume, therefore, that by entering into the negotiation process on a prenuptial agreement you and your fiancé are on good terms and willing to work with one another on creating a document that is fair and practical to use for both sides.
This can save you a great deal of heartache and disruption to your life. Consider that a divorce means that you will be negotiating the terms that will dictate the end of your marriage. More specifically, those terms are being negotiated with a person with that you do not exactly see eye to eye concerning most things in your life. As a result, you can expect that there will be a fair bit of acrimony between you and your spouse during the time of your divorce. This is true even if the two of you have tried to set aside your differences as much as possible in hopes of reaching a fair conclusion to your case.
Rather, why not take the time to work through hey well thought settlement on property issues before your marriage even begins? That is what a pre-marital property agreement is. It allows you to chart a course for your divorce that does not become relevant until your divorce begins. Again, this is like how a will operates for a state planning period the will has no legal merit or significance until you pass away. By the same token, until your marriage passes away a pre-marital property agreement has no legal standing or importance in your life or that of your spouse.
Being able to fall back on a premarital property agreement as you head into a divorce can be something that makes you and your spouse feel much better about the situation. This is especially true if the two of you have children. In that case, you can be just about sure that Both you and your spouse will be more concerned with issues related to child custody and conservatorships than you will about property issues. If this sounds like you and your spouse, then you can work hard to ensure that your case is settled as much as possible outside of court leaving only she's related to your children to walk through with him or her.
Could you stand to benefit from a pre-marital property agreement?
As with most questions directed to an attorney, my answer would be some variation of “it depends.” So much of this discussion depends upon factors at or beyond my knowledge. I don't know anything about you, your fiancé or spouse, your family, your children, your financial status, or any other considerations that are certainly relevant to the drafting of a pre-marital property agreement. For that, I would recommend that you contact one of the experienced family law attorneys with the Law Office of Bryan Fagan today. Our attorneys can walk you through your specific circumstances and how predetermined whether the drafting of a prenuptial agreement is right for you and your family.
One of the major characteristics that we have seen evolve with the times is bringing children from other marriages into new relationships. If you have children with a person other than your spouse to be then the two of you may need to discuss how to handle separate property from those other marriages. For example, if you own separate property from a prior marriage then you may want to be able to pass on that property to the children of that marriage rather than have it go through your will or the probate laws of Texas. In this case, drafting a pre-marital property agreement can be a great way to avoid issues in need to include this property in your will or consideration under a probate court judge’s ruling.
If you choose not to engage in the drafting of a pre-marital property agreement, it is conceivable that your spouse to be could take claim to much of your separate estate if you happen to pass without a will. This may anger your family as well as your children who would otherwise have benefited from your drafting a will or having a pre-marital property agreement. If nothing else, I hope that writing about this subject gives you some sense of the importance of not only a well-thought-out pre-marital property agreement but also the importance of having a will. a will does not necessarily take a long time to draft and is not expensive to have done. The attorneys with the Law Office of Bryan Fagan can also assist you in having your wheel drafted if this has not already been done.
Probably the biggest advantage to having a prenuptial agreement is something that we have already covered in today's blog post. Namely, by having a pre-marital property agreement drafted you and your fiancé can avoid many of the headaches and arguments that are typically associated with the divorce. No matter if you are the type of person who gets into arguments easily or whether you are soft-spoken and not easily angered, a pre-marital property agreement can benefit you a great deal. If nothing else, it allows you and your spouse clarity and Peace of Mind on an important area of your divorce case.
For those of you reading this blog post who our parents or plan on having children in the future, taking away one of the major Tom convince of a divorce due to your having a pre-marital property agreement already drafted is a huge advantage for you. Imagine the time and energy you can put into issues related to your children if you have already discussed topics related to property years before in your pre-marital property agreement. These are advantages that people who do not have pre-marital property agreements cannot take advantage of during the divorce case.
Another advantage to having a prenuptial agreement in place with your spouse before your marriage is that you can protect him or her from debts, and vice versa. One of the often-overlooked elements of a divorce case is debts. Just like we have a property that can be classified as separate or community-owned, deaths can either be Community property or separate property. Depending on the type of deck Carla your spouse may be wholly or partially liable for the debt after your divorce no matter what the final decree of divorce says.
What do I mean by that? The reality is that a creditor does not care too much what your final decree of divorce ultimately says about the payment of a particular debt period while your final decree of divorce may specify which spouse is to take over payments on a particular debt after a divorce is over with, this is not an addendum to a previously signed contract between you and the creditor. So, if a family court judge orders that your spouse is to make payments on a certain credit card debt until it becomes paid in full then this does not necessarily mean that the credit card company will care at all about the final decree of divorce or its ruling. There is virtually no way that the credit card company would look to your final decree of divorce as any type of authority on this matter.
What happens if you don't create a pre-marital property agreement?
Of course, there is no way for me to predict with absolute certainty what could happen if you get a divorce and do not have a premarital or marital property agreement in place. There are just so many factors that could be relevant to your case that I would not be able to give you a well-thought-out answer due to the nature of our sharing our thoughts on this subject. However, I do think it is good for us to discuss what happens if you do not have a pre-marital property agreement or marital property agreement as you begin your divorce case in Texas.
The state of Texas and its laws on Community property division and determination of separate property would go into effect for your divorce when it comes to property. For the most part, property that you acquired during your marriage will be considered to be Community property. This is important because Community property is subject to division by a family court judge in your divorce case. It does not matter whose name appears on the title to the piece of property or a receipt. All that matters is whether community income was utilized to pay for the item.
While family court judges can use their discretion and judgment to a large extent when applying the Texas family code, it can be an uncomfortable feeling for you to have to rely upon a family court judge to divide property owned by you and your spouse. Rather than have to go through the stress associated with this subject, you can leave it up to you and your fiancé in a pre-marital property agreement. By taking the steps necessary to have this document drafted before your marriage you are bypassing the stressful times associated with a divorce and the division of your community estate. For more information on the benefits of a pre-marital property agreement please contact the Law Office of Bryan Fagan today.
Questions about the material contained in today's podcast? Contact the Law Office of Bryan Fagan
If you have any questions about the Law Office of Bryan Fagan and our blog post on premarital agreements, please do not hesitate to contact us today. Our licensed family law attorneys offer free of charge consultations 6 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 you family circumstances may be impacted by the filing of a divorce or child custody case.