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Specialty tag(s): Prenuptial and Postnuptial Agreements

Post-Marital and Premarital Agreements: The Gold Standard for Protecting Assets

Jonathan James | May 13, 2025

Texas is a community property state, which means there is a presumption that money made and assets acquired during a couple’s marriage are community property (jointly owned). And in the case of a divorce, they’re typically divided between the parties in a settlement that aims to be fair and equitable, if not entirely equal. However, there are also laws that apply to inheritances or gifts received during the marriage and other assets gained by one of the spouses before marriage, which they would own exclusively if they can prove that the inheritance, gift, or ownership was before marriage. But proving that assets should be kept separate isn’t always easy if you haven’t planned for the possibility of a divorce.

What Happens When Assets Are Commingled During a Marriage?

Getting divorced can raise a lot of thorny questions about assets. What happens when separately held assets and community assets become commingled during the marriage? Or what happens when the acquisition of an asset comes into question during divorce proceedings, with one spouse claiming that it was acquired before marriage and the other spouse claiming that it was acquired during the marriage? What about stocks or other investments that gain value or produce income during a marriage?

These questions make divorce proceedings complicated and contentious, but fortunately, something is available that keeps questions about separate and community property from entering the divorce equation. Premarital agreements and post-marital agreements (also known as prenuptial and postnuptial agreements) are the gold standard for protecting assets in a divorce and protecting couples from the acrimony that can result from fights over assets.

What Are the Advantages of Premarital Agreements?

While I understand that people are optimistic about their marriages working out as they plan their weddings, I know that a premarital agreement is an insurance against future disputes, so it should be part of a financial discussion that couples have as they prepare to make plans for a long future together. For many couples, the biggest obstacle to getting a premarital agreement is bringing it up in the first place: People can’t get over the feeling that it’s unromantic to bring up the possibility of the marriage not lasting forever. But they should be reminded that premarital agreements don’t necessarily assume that a divorce will happen. Also, for engaged couples who have children from a prior relationship, a premarital agreement helps protect assets for their children, not just in the case of divorce but also if a spouse dies during the marriage, making it doubly valuable to have.

What Are the Advantages of a Post-Marital Agreement?

A post-marital agreement can be just as effective as a premarital agreement and can be applied to specific scenarios to protect assets. For example, if a couple wants to use part of one spouse’s inheritance toward a down payment on a house, the couple can draw up a post-marital agreement stating what amount went toward the house and how the house sale proceeds would be divided. In this case, the couple can get a home that they might not be able to get with just jointly held assets and still avoid disputes that might arise down the road. Some married couples decide to have a post-marital agreement just to decrease disputes and stress over finances. This can save marriages, but if it doesn’t, the divorce is often more straightforward because the assets are already divided.

What Are the Options if You Do Not Get a Premarital or Post-Marital Agreement? 

If a couple doesn’t opt to get a premarital or post-marital agreement, there are other actions each spouse can take to protect their assets, including:

• Having physical proof of when inheritances and other premarital assets were awarded and acquired
• Avoiding commingling of separate and community assets (including avoiding commingling income produced by separate property, which is generally considered community property without a premarital or post-marital agreement)
• Moving separately held assets into a trust prior to marriage

But if a client of mine has a significant amount of money from an inheritance or has a high-net-worth estate or other assets acquired prior to marriage, I strongly advocate for the gold standard of a premarital or post-marital agreement. It’s simply the best insurance against arguably the most contentious legal battle in which a person might find themselves. And the cost of a premarital agreement or post-marital agreement is nominal compared to a contentious divorce, something no one expects to have but something that happens every day.

Learn More

Jonathan James is renowned for his expertise as a litigator and negotiator in complex, high-conflict legal matters. His former clients frequently commend his integrity, professionalism, and responsiveness. Board-certified in family law by the Texas Board of Legal Specialization and a member of the State Bar of Texas, Jonathan is also trained in Collaborative Divorce. He has earned recognition as a Super Lawyers Rising Star from 2019 to 2022 and has been listed as a Best Lawyer in 2020-2021 and 2023 by The Best Lawyers in America.

For more information on premarital and post-marital agreements, please reach out to Jonathan James at 214-473-9696.

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