Prenuptial and Postnuptial Agreements

Family Law Articles

Prenuptial and Postnuptial Agreements are used to alter community property laws. To be valid and enforceable a prenuptial agreement or postnuptial agreement should:
• Be in writing.
• Be signed by the parties, after full financial disclosure.
• Be signed only after each party has reviewed the terms with their own attorney.
Many couples are choosing to not marry presently because they mistakenly believe that not marrying will avoid a messy divorce. However, if they do not marry then there is actually more uncertainty as to how their property will be divided when they breakup than if they were married. The Texas Family Code does not offer any protection to people who do not marry. Normally, one spouse has more power than the other in these situations which can create an unfair result.
The better way to stay in control of what happens when a relationship ends, is to have a Prenuptial Agreement. Prenuptial Agreements help couples have often difficult but important financial discussions before they get married. This is an excellent opportunity for the couple to discuss expectations and goals and to decide ahead of time how things will be handled financially. The couple can even provide for things Texas law does not like:
• Determine how a spouse will be compensated for giving up their career to raise a family or to help the other spouse excel in their career.

• Keep separate property separate while both spouses enjoy the property without fear of comingling or having to prove its separate status later.

• Provide for children from a previous marriage without fear that an asset will be awarded to the other spouse and then inherited by that spouse’s children or family.

• Keep everything separate or just certain assets separate.

• Change the character of property by agreement.

Prenuptial Agreements and Postnuptial Agreements can be used to avoid the emotional and financial stress of a divorce or death of a spouse. Most people think of a prenuptial agreement as something that the rich use to keep from having to pay a lot of money to their spouse in a divorce. While prenuptial agreements can certainly be used for that purpose, there are numerous other reasons for having a prenuptial agreement including:
• Predetermining the details of property division should a divorce end the marriage.

• Predetermining the details of property inheritance should the marriage end in death.

• Protecting separate property owned before marriage.

• Protecting the inheritance of property for your children from a previous marriage.

• Protecting a family business owned by a spouse before marriage.

With property division already pre-determined, if a divorce occurs, the premarital agreement will divide the property and avoid the necessity of litigation. The parties’ wishes have already been discussed and determined by their agreement. This provides the cheapest way to divide property because drafting a premarital agreement is much cheaper than the average cost of a divorce.
Postnuptial Agreements (also called Partition and Exchange Agreements) are similar to premarital agreements and accomplish the same goal of altering the community property laws, however, they are entered into after a marriage. It is common for a couple who has a prenuptial agreement to sign a post nuptial agreement after the marriage just reiterating the same agreements. However, postnuptial agreements can also be utilized when the couple is making a financial decision later in the marriage and want to alter community property before they make that financial decision. A Postnuptial agreement can also be used because the couple now realize they should have entered into a prenuptial agreement before they got married.
Another reason to enter into a postnuptial agreement is when a marriage has hit a tough patch and the couple wants to eliminate the concerns of financial decisions during the process. This permits the couple to get financial issues out of the way so that the couple can concentrate only on the relationship and whether they can make the relationship work again.
Having seen so many financial situations, an experienced divorce attorney can help you determine how community property laws would apply in different scenarios and give you ideas of how you may want to change that outcome. When prenuptial agreements and postnuptial agreements are properly utilized and well thought out they can eliminate one of the biggest reasons marriages fail: differences of opinion on financial matters. Call Robin R. Zegen for a consultation today to determine whether a prenuptial or postnuptial agreement are right for you.