No. A prenup isn’t an option after you’re married. However, you could still get a postnuptial agreement.
Even though the divorce rate in Texas is lower than in many other states in the country, at 1.4 per 1,000 marriages in a recent two-year period, there are still a lot of divorces in the Lone Star State. Many engaged couples may consider, “Should I get a prenup?” but despite all the benefits of this legal protection, some people may feel a bit awkward broaching this topic with their future spouse. Many people get married without a prenuptial agreement but then have contentious disagreements over what is considered separate property during a divorce.
Do you need to know your options about postnuptial agreements? You can benefit from legal representation from a family law attorney.
When to Consider a Prenuptial Agreement in Texas
Ideally, you’ll consider a prenuptial agreement before you get married, when you and your partner discuss serious issues like having children, career paths, and where you’d live after getting married. A prenup isn’t just for wealthy individuals. It offers protection for your other children if you were previously married or could protect your share of a family business.
Talking to Your Partner About a Prenup in TX
This conversation is understandably difficult. Because a prenuptial agreement details the allocations of assets and debts if a couple divorces, it’s easy to assume that the person bringing up the idea of creating this contract believes the marriage is doomed.
You know your partner best, so choose an appropriate time and place. Texas laws governing prenups provide plenty of leeway for a customized agreement, so you can include protections for both of you.
Texas Prenuptial Agreement Laws
The Texas Uniform Premarital Agreement Act outlines the state’s prenuptial laws, including what can and cannot be included and the circumstances under which the contract may be challenged or voided.
The Act states that all prenuptial agreements must be in writing, voluntarily signed by both parties, and created in anticipation of an upcoming marriage. The contract is effective once the couple is legally married.
A prenup sets forth the rights and obligations of each spouse with regard to property and assets. It establishes ownership of separate property, which is property each party owned individually before the marriage. This can include real estate, retirement accounts, jewelry, and even a personal injury settlement awarded to one spouse before marriage.
A prenup can also specify whether one party will pay alimony, or spousal support, and the amount. Some couples may stipulate that if a spouse is unfaithful, they cannot get spousal support.
If you have property or assets from a previous marriage, a prenup can also protect these, establishing them as separate property and not community property obtained during your new union. You can provide for children from a previous marriage, too, separating assets and property from your new marriage and ensuring that they pass down to your existing children.
Prenuptial agreements don’t just protect your separate assets from being split with your spouse in a divorce. As a community property state, Texas also views community debt as belonging to both spouses if they divorce. Prenups can assign the responsibility of separate debts (those acquired before marriage) to the spouse who incurred the debt in the divorce process.
So, if your partner had student loans, a personal loan, or substantial credit card debt, you can stipulate that they are solely responsible for settling that debt if you divorce.
What a prenuptial agreement cannot do is establish a child custody arrangement or set an amount of child support. These are separate issues from the prenuptial agreement, which deals with the ownership of separate and community property. In fact, Texas law states that child support may not be affected by a prenuptial agreement.
What’s the Difference Between a Prenup and a Postnup?
Generally speaking, a prenuptial agreement is a contract negotiated and signed before the nuptials, while a postnuptial agreement is a contract (with similar provisions to a prenup) signed after the couple is legally married.
Perhaps down the road, a married couple that started out on fairly equal financial footing is now imbalanced enough so that an equal division of community property would unfairly affect one spouse’s fiscal interests. At this point, one spouse may wish to place legal protections on an inheritance or a business investment.
Postnuptial agreements cover much the same ground as prenups and can address financial concerns for the couple. For example, a post-nup could state which spouse is responsible for which expenses. Or, if the couple has a child together, a postnuptial agreement could protect assets for children from a previous marriage.
Texas is a community property state, which means that without a prenuptial agreement, a judge can divide all marital property equitably. However, not every state is a community property state. If you’re moving from another state to Texas, you may wish to preserve your martial status quo from the non-community property state. A postnup is the legal vehicle you can use to do so.
Alternatives to Prenuptial Agreements in Texas
Prenuptial agreements provide proof of which spouse owned or controlled which assets (separate property) before marriage. They can also identify income or property that will be used for the benefit of children from a previous marriage. However, if you want to provide for your children from a previous marriage, you don’t necessarily have to have a prenup or postnup.
Before you marry, you could create a trust for your children, placing separate assets in the trust and setting conditions for the use of the assets. Or you could gift assets or property to your children outright before you get married.
You can also create a trust for yourself, placing your separate assets in it so that your soon-to-be spouse cannot control or dispose of them. An estate planning or family law attorney can advise you about the benefits and drawbacks of a prenup vs. a trust.
If you’re already married, a postnuptial agreement is a viable alternative to a prenup.
Should I Get a Prenup? Ask Our Skilled Family Law Attorneys
Do you have questions about how a prenuptial agreement can protect your assets after you get married? Do you need help with the division of assets and allocation of debts in a divorce? Contact Smith Family Law at (512) 764-1044 for a consultation with a Texas prenuptial agreement lawyer.