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 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 what 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 any 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 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 here, or contact our office now to schedule a confidential consultation.