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You’re getting married – congratulations! Most of the wedding planning process is full of excitement and fun, but as soon as you suggest a prenuptial agreement, the fun may fizzle. Although engaged couples tie the knot believing the marriage will last a lifetime, the reality is that a lot of marriages end in divorce. Prenuptial agreements in Texas can help divorcing spouses avoid contentious divisions of assets and debts. This legally binding contract is a form of protection and isn’t just for the wealthy. An experienced family law attorney can help you learn more about how to get a prenup agreement in Texas.
Getting Married with a Prenuptial Agreement in TX
Texas is a community property state, meaning that in the event of a divorce, all assets and debts accumulated by the couple during their marriage will be split equitably. However, if one spouse has substantial debt incurred during marriage, a judge may split that debt between the spouses – and you could be on the hook for loans you didn’t personally take out.
Community property is all property, real estate, and other assets (like investment or retirement accounts) acquired during the marriage. If your divorce goes to trial, a judge may split the marital property equitably, which often means a 50/50 share for each spouse.
A prenup in Texas preserves the sole ownership of separate property for each spouse so that in case of divorce, they retain full control over their assets. Separate property is the property each partner owned prior to the marriage.
Texas Marriage Laws
Prenuptial agreements are addressed in the Texas Uniform Premarital Agreement Act (TUPAA). Some important stipulations to note about prenuptial agreements in the Lone Star State include:
- All agreements must be in writing and signed by both spouses.
- The agreement must be made in anticipation of the parties getting married.
- Prenuptial agreements deal with assets and debts, not child support or custody.
- Provisions for spousal support (and amounts) may be included.
- The right to transfer, buy, sell, or otherwise dispose of specific assets may be addressed.
- Any debt that each spouse acquired before marriage can be included so that it remains their responsibility after a divorce.
- Any inheritance of one spouse can be specified to remain the property of that spouse on divorce.
- The prenup can contain language indicating that a will or trust may be drafted to carry out the provisions of the prenuptial agreement.
Creating a Prenup in Texas
Prenups are legal contracts and are binding unless a limited set of circumstances apply. It’s in your best interest to have an attorney draft your prenup or review a present premarital agreement to you.
Texas law provides a broad framework for prenuptial agreement contracts, so yours can include relevant clauses applicable to your situation. A lawyer can look at your pre-marriage financial situation, valuing your debts, salary, and future earning potential. They can also help establish a value for intangible contributions you may make to the marriage. For example, if you plan to be a stay-at-home spouse or parent, the prenup may account for this non-monetary contribution to your union to make sure you’re properly compensated if there’s a divorce.
There is no waiting period for either party to review the agreement, and it may be signed at any point before the couple is legally married, even on the day of the wedding.
Understand What Makes a Prenup Valid in Texas
Texas law states that a prenuptial agreement will be unenforceable if the marriage is invalid but could be used to the extent that it is needed to produce an equitable outcome.
Or, if the agreement was signed under duress or otherwise was not voluntarily signed, then it’s invalid.
A prenup may also be invalid if it’s unconscionable under these conditions:
- One spouse did not provide a full or fair disclosure of the extent of their assets or debts, or
- The other spouse did not sign a waiver stating that they did not need to fully disclose their financial situation, or
- The petitioning spouse could not have known about the other party’s financial situation.
That is, if one spouse is hiding significant debt or resources and doesn’t disclose these during the negotiations, the other spouse did not waive their right to full disclosure, and they could have had no reasonable way of knowing what they were hiding, then the contract is invalid.
Bear in mind that if you plan to contest the validity of your prenuptial agreement on any of these grounds, you’ll have to prove your case to a judge.
Enforcing Prenuptial Agreements in Texas
Texas law states that prenuptial agreements are enforceable as long as they meet the standards of the TUPAA. As long as the prenup is:
- In writing
- Voluntarily signed by both parties
- Made with the intent that the parties will marry
- Not unconscionably executed
- Does not violate Texas laws
then it’s enforceable upon the marriage of the two signing parties.
What Happens If You Don’t Get a Prenup in Texas?
You may realize after you get married that a prenuptial agreement would have best served your interests. While prenuptial agreements aren’t possible after marriage, you can talk to your family law attorney about postnuptial agreements.
A postnup is very similar to a prenup in that it allocates certain assets and debts to each spouse if they divorce. However, it’s a contract that’s signed after you get married.
A postnuptial agreement may be a consideration if you inherit assets or property after you get married, but you wish to make sure that these assets pass to children from a prior marriage and not be considered community property.
Or, perhaps you enter a business arrangement or purchase a share of a family business, and you want to avoid having your business interest considered community property. A postnuptial agreement might protect this business investment.
Do You Need Legal Advice About How to Get a Prenup?
Are you worried about Texas community property laws if you get divorced? Do you have assets you wish to preserve as separate? Contact Smith Family Law today at (512) 277-3166 for an appointment with our team of Texas premarital agreement attorneys. We can advise you of the implications of a prenup and help draft an agreement that protects your interests.
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