Should I Put Together a Prenuptial Agreement?
When you marry someone, you believe it will be forever; because of this, many people consider prenuptial agreements as a sign of low hopes for the marriage. However, creating a prenuptial agreement is often a financially smart move.
The average age that couples get married is rising, which means that many people are marrying with more assets than ever before. At the same time, the number of marriages ending in divorce is also rising; a premarital agreement can give both you and your spouse financial peace of mind.
A family law attorney, such as those here at Skillern Firm, can help you put together a prenuptial agreement that is fair for both parties. It is important to have legal counsel to ensure the validity of your agreement in order to assure that it is enforceable if you ever need it.
We take a personalized approach to the attorney-client relationship, which means that we take the time to understand your situation and ensure that decisions are made to best suit your needs. Arrange an initial consultation today at 936-213-8479.
What Is a Prenuptial Agreement?
A prenuptial agreement, or prenup for short, is a contract between spouses who are planning to get married. They are usually designed to guide the division of marital property in the event of a divorce. The purpose of a prenup is to create a plan that produces a more favorable outcome than the one dictated to by state law.
A prenup must be finalized before the couple is married, and they become effective once they are legally married. Other names for a prenup include the premarital or antenuptial agreement.
Should You Get A Prenuptial Agreement?
Prenuptial agreements are not always necessary. However, if either spouse has significant assets or debt, then it could be an important aspect of the marriage. It may also be worth considering a prenup if either of you already has children from a previous marriage.
Some common reasons for a premarital agreement include:
- Protect your existing assets.
- Protect business assets.
- Provide for your loved ones in the event of divorce or death.
- Resolve asset disputes before they occur.
- Protect yourself from sharing your partner’s debt.
- Reduce conflict in the event of a divorce.
This list is not exclusive, and if you are considering creating or entering a prenuptial agreement, then you should seek an initial consultation with a family law attorney for more advice.
What Can a Prenuptial Agreement Include in Texas?
A prenup is a written contract that can seek to accomplish various things, including:
- Dictate whether either party will be required to pay spousal support and how it will be calculated.
- Determine whether any additional steps will be necessary for the prenup to be valid.
- Decide who has rights to control property acquired during the course of the marriage, including the rights to sell, buy and transfer ownership.
- Determine how the property will be divided in the event of a divorce.
- Name parities as beneficiaries on life insurance policies.
- Direct the parties to create a will or trust to ensure their assets are distributed in line with their wishes at death.
- Decide how the surviving spouse will be provided for if the other spouse suffers incapacitation or death.
- Any other personal rights and obligations during the marriage as long as no law or public policy are violated.
What Can’t a Prenuptial Agreement Include in Texas?
A prenup can’t include agreements regarding child custody or child support. Family law decisions post-divorce are made based on the best interests and rights of the child, which can’t be dictated by the parents. Child custody decisions are made by the Judge based on the circumstances at the time of divorce.
How is Property Divided in a Divorce in Texas?
To understand why a premarital agreement might be a good idea for you and your spouse, it may be helpful to know how property is divided in the event of a divorce.
Texas is a community property state which means that upon divorce, all property is divided into separate and community property.
Separate property is all assets and debts either party owned before marriage as well as some property acquired during the marriage, such as gifts, inheritance, compensation, and property protected by a prenuptial agreement. The premarital property continues to belong to each spouse after the marriage has ended.
Community property includes all assets and debts acquired during marriage by either party. Community property must be split in an equitable manner. In Texas, the court presumes this to mean an equal split unless it can be shown to be reasonable for one spouse to receive more than the other.
For example, if one spouse keeps primary custody of their children, then they may be able to claim the family home. Another example could be if one spouse was an addict and created a lot of debt that was not contributed to by the other spouse, the spouse who acquired the debt might be required to keep it all.
Benefits of a Prenuptial Agreement
Some people believe that creating their own prenuptial agreement is unromantic, or they may see a spouse’s attempt at creating a prenup as a sign that their spouse doesn’t have faith in their relationship.
No matter how much you love your spouse, sometimes marriages don’t work out, and so a prenup can be a smart decision that protects both of you. Some of the benefits include:
- Avoid future disputes.
- Ensuring children from previous relationships are provided for.
- Protecting family assets or businesses.
- Preparing for the possibility of either spouse’s death.
- Protection from the other’s debts.
- Avoiding legal costs to negotiate or litigate property division or spousal support.
When carried out correctly, a prenup provides peace of mind and comfort, knowing that your assets, children, and spouse are protected and that you have an agreement already in place in the event of divorce or death.
Prenuptial agreements are often stigmatized, but it is often a form of life-planning, similar to creating a will. While you hope for the best, preparing for future challenges can be a smart decision. It is not only a way of planning for divorce but also other unfortunate circumstances such as death.
Creating a prenuptial agreement is often the first step in creating other long-term plans, such as trusts or saving plans to provide for children and other relatives.
How to Ensure That a Prenuptial Agreement is Enforceable in Texas
A good prenuptial agreement benefits both parties and helps spouses to plan for their future. However, a prenuptial agreement must also be lawful if it is to be enforceable. The following factors are essential to ensuring a successful prenuptial agreement:
Both spouses need to fully disclose all of their financial matters unless one or both parties have waived their rights to financial disclosure. A waiver must be stated in writing and voluntary. Otherwise, both spouses need to provide statements that cover:
- Bank accounts.
- Income tax returns.
- Real estate.
- Security accounts.
- Information about self-owned businesses.
- Loans and debts.
- Retirement benefits.
A prenuptial agreement must be free from coercion, duress, and overreaching in order to be valid. When you create a prenup with the help of an attorney, they can help ensure that both parties are properly informed and that the agreement is fully valid.
Timing is also important to ensure that a prenup is free from coercion, if it is created just before a wedding, then it may be presumed to have been created under duress. It is best to create a prenup long before the wedding date so that you both have the time to ensure that you are happy and comfortable with the agreed upon terms.
Seeking independent advice from a family law attorney is essential to ensuring your prenup is valid. While this is not a legal requirement, it will prevent any suggestion that either party was not fully informed, which would make the prenup invalid.
When you have the assistance of an attorney, you will have greater assurance that your prenup will hold up in court. Not only will they ensure everyone has properly considered the terms of the prenup, they will also ensure that it follows legal requirements.
For example, if any of the requirements of the prenup create too much hardship for one spouse, then it will not be enforceable. Your family law attorney will make sure that each spouse’s needs are met in the prenup.
Get Help Creating Your Prenuptial Agreement
The decision to make a prenup agreement and what should be included is an important decision., Most couples work with a family law attorney or other trusted person to help them formulate an agreement that is legally sound and considers the needs of each spouse.
If you and your spouse do decide that creating a prenup agreement is the right choice, then it is important for both of you to be represented by your own attorney. That way, both of you will have the guidance you need and a third party looking out for your best interest. If one spouse has a lawyer and the other doesn’t, then it could invalidate your agreement because of concerns over coercion, especially if the agreement favors one spouse over the other.,
An experienced family law attorney will make sure everything is in line with state law and that you complete your agreement with plenty of time before the wedding; this will ensure that the terms are clear and are likely to be validated by the court.
While it could be tempting to create a prenup without the expense of attorneys to save on legal fees, a clearly written and enforceable prenup will save you both stress and court fees if it is needed in the future.
What Happens When a Prenuptial Agreement Is Created Incorrectly
The Court will invalidate a prenup if it contains unfair provisions or does not comply with the law. If you and your spouse do create a prenup and decide to end your marriage, then it is important it holds up in court.
Your prenuptial agreement may not hold up in court if:
- Either you or your spouse did not have independent legal representation when the agreement was created and signed.
- The agreement was not signed by one of the parties or was signed as a result of pressure or coercion.
- Either spouse did not fully disclose everything they needed to before the agreement was created.
- The agreement was not executed prior to the marriage.
- The agreement would result in one spouse facing serious financial hardship if the agreement was enacted.
- Either party did not have sufficient time to read and understand the agreement before signing.
- The agreement contains invalid provisions such as child support obligations.
- The agreement is not in documented writing.
To ensure that your prenuptial agreement is valid and therefore enforceable at a later date, each spouse should work with a family law attorney. If the prenup is invalidated, then the Court could override the terms of the agreement to determine who has rights to a specific property, how spousal support is awarded, and any other factors addressed in the prenup.
Prenuptial Agreement FAQ
Q: Can I Change or Terminate a Prenuptial Agreement After Marriage?
A: Yes, it is possible to change or terminate the initial prenuptial agreement by entering a subsequent agreement that invalidates or alters the original prenup. Both spouses must agree, and the new agreement, known as a postnuptial agreement, must be in writing.
Q: What if My Spouse Won’t Sign The Prenup?
A: Both spouses must agree to and sign the prenup in order for it to be valid. If your spouse does not want a prenup, then it is a good idea for you to keep proof of property you own before you are married, as well as any inheritance and gifts you acquire during the marriage. Keeping records will help ensure a fair division of property in the event of divorce.
Q: When Should I Begin The Process of a Prenuptial Agreement?
A: It is a good idea to start the process of a prenuptial agreement as soon as possible after an engagement. It is good to finalize the agreement early to ensure both parties have plenty of time to review the agreement and so that you can begin to look forward to your wedding day with the prenup out of the way.
Q: Which Spouse Should Prepare The Prenup?
A: Usually, the higher-earning spouse, or the one with the most assets, starts the process of preparing a prenup with the help of a family law attorney. The other party should retain separate counsel to review the terms and make suggestions for possible changes.
The final draft should be presented to the party whose attorney did not prepare the agreement at least seven days before it is signed. If everyone agrees, then their respective attorneys will execute the agreement.
Why Should I Put Together a Prenuptial Agreement With The Help of Skillern Firm?
When you have the help of an experienced family law attorney, you can feel confident knowing that all bases have been covered and that your interests are protected.
The best prenuptial agreements should address all the things that matter to you and your future spouse, and they should be clear and easy to understand. At Skillern Firm, we are proud mediators and are committed to protecting relationships and helping couples plan for their future.
Our law firm is dedicated to helping clients navigate family law in the Greater Houston area. We have worked with numerous couples to help them form comprehensive prenup agreements and are prepared to do the same for you.