Texas Prenuptial & Postnuptial Agreements

What is a Marital Property Agreement?

There are different types of agreements that spouses and soon-to-be spouses can reach regarding their marital property rights. For example, before marriage, you can enter into a premarital agreement, also known as a prenuptial agreement. After marriage, you can enter into a postnuptial agreement, also known as a partition and exchange agreement or post-marital agreement. Under Texas law, spouses are granted the right to change the character of community and separate property by agreement with the use of a marital property agreement.

A marital property agreement is an agreement that spouses can enter into before or at any time after marriage. To be valid, this agreement must be in writing and signed. This agreement permits spouses to alter the community property system used in Texas in the following ways:

• Convert community property into separate property by partitioning and exchanging community property between spouses. For example, if the parties accumulated $100,000 in an account during the marriage, then the $100,000 is community property, and each party owns an interest in the property. At the time of a divorce, the $100,000 is subject to being divided between the spouses by the court. In a marital property agreement, the spouses can agree to divide the $100,000 so that each spouse owns $50,000 of the account as his/her separate property. In this situation, at the time of divorce, the $50,000 owned by each spouse will not be subject to being divided by the court, but rather, will be confirmed as the separate property of the spouse.
• Convert income that is derived from community property to separate property. For example, if a spouse owned a retirement account prior to marriage, then all income that flows from this account during the marriage is community property and is subject to being divided at the time of divorce. In a marital property agreement, the spouses can agree that all of the income from the separate property retirement account is also to be that spouse’s separate property. In this situation, none of the retirement accounts will be subject to division by the court at the time of divorce; rather, the entire retirement account will be confirmed as the separate property of the spouse owning the account before marriage.

In summary, having a prenuptial agreement attorney help you and your spouse create a well-written marital property agreement will allow you both to clarify your respective property rights and eliminate any uncertainty about those rights during your marriage. At the same time, a marital property agreement will clearly define what will happen with your property in the event of a divorce.

What is a Prenuptial Agreement?

Prenuptial agreements (also referred to as premarital agreements) are binding legal documents created between two people before marriage. Prenuptial agreements can be as simple as each person confirming what property they bring into the marriage and as complex as eliminating any community estate and dictating what happens in the event of divorce or the death of a spouse. The primary purpose of a premarital agreement is to modify Texas’ community property laws. Modifying the law impacts not only the financial aspects of any future divorce but also impacts estate planning.

What is a Postnuptial Agreement?

During a marriage, spouses sometimes want to set out some ground rules to govern the assets and liabilities they have accumulated during the marriage. Postnuptial agreements, also known as Post-Marital Agreements or Partition or Exchange Agreements, are documents that allow married couples to make binding changes to their finances after they have wed.

Postnuptial agreements are also binding legal documents that define the division of assets and debts should the marriage be dissolved. The benefits of a postnuptial agreement take away the uncertainty of what is going to happen in a divorce. And so, once the divorce is filed, you abide by the terms of the agreement and it’s much simpler and much less expensive. One consideration for anyone who’s thinking about getting a postnuptial agreement is to consult with a lawyer and find out what happens if you don’t have one.

Why Marital Property Agreements Are Important

Prenuptial agreements, postnuptial agreements, and agreements to convert separate property to community property can provide structure, clarity, and a pathway to a successful marriage by eliminating one of the most potent marital stressors: money. Marital agreements are for anyone who wants to apply a different set of rules than what Texas law provides when it comes to property created during the marriage and how that property will be divided in the event of divorce or death.

Do You Need a Prenuptial or Postnuptial Agreement?

It could be that you are unsure whether a prenuptial, postnuptial, or other marital property agreement is right for you and your future spouse. On the other hand, you might have received an agreement to review and would like clear legal advice. Or you’re considering divorce and would like to examine the enforceability of your existing agreement. Whatever your question about this area of family law, Goranson Bain Ausley’s experienced lawyers for prenuptial agreements are here to answer your questions.

The goal of a prenuptial agreement attorney is to listen to your story. We want to know your goals, concerns, and expectations for the future. A prenup lawyer can help you and answer your questions about marital agreements, including:

• What is and is not included in a prenup?
• What should you consider before signing a prenup?
• How have prenup agreements changed? What is a modern prenup?
• Are prenups enforceable?
• When is it a good idea for a married couple to have a postnuptial agreement?
• Do you need a family lawyer to draft a marital agreement?
• What is a Collaborative prenup?
• How do courts determine the fairness of a marital property agreement?