713-333-4430How Do Prenuptial Agreements Work in Texas?
You’re getting married in Texas soon, and you couldn’t be more excited. But before the big day, you want to put everything on the table with your spouse-to-be.
Along with hopes and dreams for your future together, you would like to agree on your expectations of one another and lay out exactly what should happen if you have to get a divorce one day. Though you’re optimistic that won’t transpire, just in case it does, you both want to be protected. That’s where a prenuptial agreement comes into play.
What Is a Prenuptial Agreement?
A Texas prenuptial agreement is a contract that’s becoming more popular that two future spouses create together and sign prior to getting married. It is also called a prenup or a premarital agreement.
The prenup will include things like:
What is one spouse’s separate property and what will be community property in the marriage. For instance, if one spouse has amassed substantial wealth or valuable assets prior to entering the marriage, the document could confirm that these would not be subject to division in a divorce. It could serve to detail who has management rights over property during the marriage;
Where the inheritance will go. Let’s say you want to have a child with your spouse, and would like your inheritance to go to that child instead of a child in a second marriage. The prenup can stipulate that. However, this type of situation should always be confirmed in a last will and testament;
Who is responsible for debt. If your spouse has a lot of debt from student loans, credit cards or anything else, you can free yourself from that responsibility should you divorce;
Identify separate property you want to keep in your family. This way, your spouse would not get your family house, business, etc.; and/or w hat each spouse’s financial responsibilities are going to be. For instance, you can include who is going to manage the household bills.
The prenup cannot include things like:
An agreement regarding child support. A premarital agreement cannot adversely affect a child’s right to receive child support;
Any action that would intentionally defraud preexisting creditors; and/or a ny waiver of Employee Retirement Income Security Act (ERISA) retirement benefits. For example, a premarital agreement cannot waive a prospective spouse’s survivor benefits in an ERISA retirement plan.
A prenup will not only protect the spouses in a divorce financially, but if one does not fulfill their obligations they signed on for, this gives the other leverage during the divorce process.
Though prenups are legal in every state as long as they are written correctly, the laws surrounding them vary from state to state. In Texas, prenups fall under the Texas Family Code.
A Texas Court has the authority, under the Texas Family Code, to question the enforceability of the premarital agreement if one of the spouses did not voluntarily sign it, or the agreement was deemed unconscionable when it was signed. These situations rely heavily upon the facts of each individual case. For example, a spouse who is questioning its enforceability may not have been given a complete financial picture for their spouse, or there was no way they could have had knowledge about the other spouses’ liabilities and assets.
Why Get a Prenup?
Before you go into a marriage, you want to ensure that you and your future spouse will be protected. You also want it to be clear exactly who will handle the financial responsibilities, whether it’s paying the bills, making investments, managing assets and more.
A prenuptial agreement is also a good idea if one spouse has significantly more assets than other, if one has significantly more debts than the other, if at least one spouse is going to be bringing their property into the marriage, if one or both have children and if one or both plan on remarrying if they were to get divorced.
How to Create a Prenup
It is possible for you to create your own prenup using a prenup template, and then have it reviewed by a lawyer, or involve a lawyer from the start and have them help you professionally complete the prenup. The latter will save you time, since you don’t have to go searching for a valid template and learn all the ins and outs of Texas’ prenup laws. Plus, having an experienced lawyer on your side will ensure the process is done properly and you don’t have to go back and make multiple revisions to your prenup.
A lawyer is also a helpful mediator. Let’s say your future spouse is offended that you want a prenup, or is getting defensive about their financial situation. A lawyer may be able to help resolve these situations. It is important to remember that your lawyer cannot give legal advice to your prospective spouse but is able to communicate with them unless they are also represented by counsel. It is critical that nobody feel like they are forced to enter into this agreement.
Keep in mind that you can also sign a marital property agreement after you get married. However, this agreement is called a post-marital agreement or a postnup. You’re also able to disavow or change your prenuptial agreement after you get married.
People usually choose to do it all before they walk down the aisle just to make sure expectations are clear and everything is in order. At the same time, many couples will update their last will and testament, advanced directive and power of attorney to make sure that their spouse is included in every legal document.
Finding a Prenuptial Lawyer to Help
Whether you want to create a prenup or possibly invalidate one, you need an experienced prenuptial lawyer to help you. Look for one whose practice solely focuses on family law, and who has dealt with many prenups before. Also find a lawyer who doesn’t make you or your future spouse feel uncomfortable or pressured during the process in order to ensure it goes as smoothly as possible and there are no bad feelings on either side.
The experienced prenuptial agreement attorneys at Boudreaux Hunter & Associates, LLC are available to consult with you if you are considering filing or invalidating a prenup. We can provide valuable insight to the complex nature of these cases and our initial consultation is always at no charge to you. You can learn more about our prenuptial agreement representation and get your questions answered by contacting our office now to schedule a confidential consultation.
What to Put in a Prenup
Essentially, your prenup is going to outline a few different things, like:
- Which assets belong to each person, and which assets belong to both of them in the marriage
- Which debts belong to each person, and which debts belong to both of them in the marriage
- Each spouse’s role when it comes to financial responsibilities
For instance, let’s say that you plan to acquire many different properties during your marriage, and you don’t want your future spouse to own them, too. You can keep them separate by stipulating to that in your prenup.
When it comes to debts, perhaps your spouse has a lot of credit card debt they need to pay off. You both discussed it and decided that they were going to pay off their debt on their own without your help. You could document that in your prenup as well.
Another important thing to include is who is going to take care of paying the bills, making investments, contributing to retirement, and other financial responsibilities. Even if you both agree to share the responsibility, it should say that in your prenup.
If you’re getting remarried and you have children from a prior marriage, you can include in your prenup that you want those children to inherit your estate when you pass away.
Keep in mind that you cannot include anything about child custody, child support, parenting time, or what the non-financial responsibilities of each spouse will be during the marriage.
Why Get a Prenup?
Divorces are very difficult. They can take a long time and cost a lot of money. With a prenup, spouses can save themselves time and energy since the characterization and distribution of their assets and debts will already be determined.
Prenups are also useful because they encourage spouses to talk about finances prior to the marriage. If they walk down the aisle without an agreement, then they won’t create boundaries around money or know who is going to handle the finances. An agreement will encourage them to communicate, which will be helpful in all aspects of their marriage.
If you’re worried about what’s going to happen to your assets and debts – as well as your spouse’s – then a prenuptial agreement can help eliminate any stress you’re both experiencing. You can go into the marriage knowing that if you were to divorce, it wouldn’t be as tough, at least from a financial standpoint.
When to Talk About a Prenuptial Agreement
Ideally, you should be honest with your fiancé and talk about a prenup as soon as possible. Don’t spring it on them at the last minute. Practically speaking, it should be completed at least one month before you get married.
It’s good to get the agreement finalized before you start doing any wedding planning so that it isn’t in the back of your mind during an already overwhelming time.
When you discuss the agreement, be sure to explain your position and why you want it. For example, perhaps your parents had a very tumultuous divorce because of finances and you don’t want to go through the same thing. Always use “I” statements and seek out the help of a compassionate couples’ counselor if necessary.
The Importance of Hiring a Family Lawyer When Creating a Prenuptial Agreement
It’s critical to hire an experienced family lawyer when creating your prenuptial agreement. If it’s not a legal document, then a judge will not be able to factor it into your divorce proceedings, which could lead to devastating financial consequences.
Your lawyer will make sure that your prenuptial agreement is 100% legal and will hold up in a court of law during your divorce. For example, they will be open with you and ensure you disclose all relevant assets and debts. If you hide anything from your fiancé by undervaluing your assets or debts or not disclosing how much you have, then the judge could say that your prenuptial agreement is not valid.
Additionally, your family lawyer will make you feel well represented and that you are getting what you want out of the prenuptial agreement. You cannot coerce your fiancé into signing, or else it would become invalid.
If you and your fiancé are having any disagreements, a third-party mediator like a family lawyer could be very useful. Your lawyer will demonstrate that this is simply a precaution for you and your fiancé and it doesn’t mean you think that you’re going to get a divorce.
On a practical note, your family lawyer is going to review the document to make sure that everything is fair and everyone signed and dated it in the presence of legal representation. Then, you won’t have to worry about whether or not it’s valid.
Get in Touch With Boudreaux Hunter & Associates, LLC
When you’re hoping to create a prenuptial agreement for you and your fiancé, you can reach out to Boudreaux Hunter & Associates, LLC for help. We’ll work hard on your agreement and be your source of support in your time of need. Make sure you get in touch online or by calling us at (713) 333-4430. We look forward to hearing from you.
When to Talk About a Prenuptial Agreement
Ideally, you should be honest with your fiancé and talk about a prenup as soon as possible. Don’t spring it on them at the last minute. Practically speaking, it should be completed at least one month before you get married.
It’s good to get the agreement finalized before you start doing any wedding planning so that it isn’t in the back of your mind during an already overwhelming time.
When you discuss the agreement, be sure to explain your position and why you want it. For example, perhaps your parents had a very tumultuous divorce because of finances and you don’t want to go through the same thing. Always use “I” statements and seek out the help of a compassionate couples’ counselor if necessary.
How Prenups are Enforced in Texas
Texas courts uphold prenups as long as they are executed voluntarily following a fair and reasonable financial disclosure. Failure to provide a fair and reasonable financial disclosure may give rise to the agreement being found unconscionable. Courts might disregard specific provisions if they are deemed unconscionable.
Entering into a prenup doesn’t signify a lack of faith in love. Instead, it’s a gesture of devotion, respect, and pragmatic thinking. Just as people invest in insurance to protect against uncertainties, prenups reflect emotional insurance for the journey of marriage. By addressing financial matters in a straightforward approach and responsibly, couples can navigate the path ahead with greater peace of mind, fortified by the knowledge that they’re prepared for whatever the future may hold.
As you embark on your journey of marriage, keep in mind that safeguarding your love and assets isn’t a sign of doubt or criticism of one partner or the other but rather a reflection of your commitment and concern for one another. Contact a Texas prenuptial agreement attorney for a confidential consultation to begin planning your prenuptial agreement.
Shannon L. Boudreaux is a passionate advocate for her clients, working on their behalf to help them reshape their lives, their families, and their futures. For two decades, she has helped reunite parents with their children and helped clients negotiate contentious custody disputes. Learn more here.
