Contact Smith Family Law immediately if you’re considering creating a postmarital agreement with your spouse. Like prenups, postnups are beneficial for outlining a couple’s separate and marital property, protecting each person’s rights to the property, and determining how to divide everything if one spouse dies or files for divorce. You might want to sign a postnup after having children or starting a business. No matter your reason, hiring an experienced attorney is crucial. Smith Family Law can help. We will review all assets, liabilities, and other information and draft a well-prepared postmarital agreement to protect your interests. Call us at (512) 277-3166 for a free consultation with a postmarital agreement lawyer in Austin for more information.
An Overview of a Postnuptial Agreement
A postnup is a legal agreement two spouses sign after getting married. It is similar to a prenup, except a prenup is executed before marriage.
Drafting a postmarital agreement doesn’t require a married couple to have a rocky relationship or be on a path to divorce. In fact, it can be beneficial to execute one while you and your spouse get along and the marriage is in a good place.
A postnup doesn’t only protect each spouse during divorce proceedings. It can also clearly state how to classify or use the marital property if one of the parties dies. With a well-thought-out plan, the stress of dealing with the unexpected and making difficult decisions is simpler.
Any married couple can benefit from a postmarital agreement when specific circumstances arise, such as a sudden inheritance from a relative. The contract terms can indicate whether the spouse who received the inheritance has sole rights to it, the money should distribute to the couple’s children, or each spouse should receive half or a predetermined percentage after divorcing.
If one spouse experiences personal problems during the marriage, a carefully drafted postnup can protect the other spouse. For example, you might discover your husband or wife has a gambling addiction and incurred significant debt. If your postnup was written so that any debt incurred by either spouse without their partner’s approval will not be shared debt, you could avoid responsibility for their gambling debts.
What You Can Include in a Postmarital Agreement
Outlining the financial details, responsibilities, and privileges related to each spouse and the overall marriage is the primary goal of a postnup. You can include terms such as:
- Which spouse will manage and control marital property, including whether to transfer, dispose of, or sell the property
- How to distribute assets to children from a past marriage after death or divorce
- Whether one spouse has rights to spousal maintenance in a divorce settlement and how much they should receive
- How to divide property if you separate or divorce
- Estate planning arrangements, such as creating a trust or will
- How to manage a family business and other family assets while married or if the couple divorces or one spouse dies
You can use a postnup to resolve numerous matters related to your finances before they become problematic. Preparing in advance can save time and money and reduce the risk of ugly courtroom battles if the marriage ends.
Aspects of a Marriage You Can’t Incorporate into a Postnup
Anything considered unconscionable or illegal also isn’t allowed. For example, a judge might decide terms prohibiting a stay-at-home parent from spousal maintenance if the couple gets divorced is unconscionable.
Benefits of Establishing a Postmarital Agreement
Although forming a postnup seems unromantic or maybe even unnecessary, it can strengthen your relationship by fostering open and honest communication. You and your spouse must work together to negotiate fair and mutually beneficial terms to protect both of you in the future.
Other advantages of executing a postnup include:
- Protecting the inheritance rights of your child or grandchild from a previous marriage
- Avoiding paying an unfair or excessive amount of spousal maintenance if you get divorced
- Preventing taking on your spouse’s debt
- Ensuring you get spousal maintenance in a divorce for your contributions as a stay-at-home parent or sacrifice of giving up your job to support your spouse’s career goals
- Protecting ownership of your family property or family business from transferring to your spouse after divorce
- Clarifying the expectations and responsibilities of each spouse related to finances during the marriage
You also mitigate the risk of unnecessary and costly litigation during a divorce if that’s what your marriage comes to in the future. A postnup defines each spouse’s roles, duties, rights, and liabilities under multiple circumstances. Instead of arguing with each other over who should receive a specific asset or rights to a business, navigating negotiations is straightforward when a contract spells out explicit terms.
Executing a Legally Enforceable Postnup in Texas
You must meet these requirements to form a valid and legally enforceable postmarital agreement in Texas:
- Written – The contract must be in writing with all the terms you want to include in understandable language.
- Voluntary – You and your spouse must voluntarily enter into the agreement. Signing under duress, coercion, or fraud will invalidate the contract.
- Signed – Each party to the postnup must sign.
- Competent – You and your spouse must have the mental competency to enter into the agreement, understand each term, and understand the consequences of signing.
- Full disclosure – Each spouse must disclose all assets and debts to each other before signing the contract.
When Should I Create a Postmarital Agreement?
You can draft a postnup any time after getting married. However, some events in a marriage convince a couple that it might be time to form a postnup such as:
- Either spouse pursues a new business venture
- One spouse accumulates debt due to a gambling or shopping addiction
- The couple buys an expensive home or another substantial purchase
- Either spouse receives a significant inheritance from a family member
- The couple starts seeing a therapist to address problems in the marriage
- One spouse decides to give up their career to care for the couple’s children
- There isn’t an executed premarital agreement
- Either spouse makes a mistake, but the couple wants to try to work on the marriage
Some situations, such as adultery, might put the future of the marriage at risk. However, it doesn’t necessarily mean the marriage will fail. Married couples often find ways to resolve their issues and strengthen their bond.
Forming a postnup doesn’t mean you believe the marriage is close to ending. It can help you and your spouse address your finances so you can focus on rebuilding your relationship.
Do I Need a Postmarital Agreement Lawyer in Austin?
Some websites provide do-it-yourself options to complete, sign, and file a postnup without involving legal counsel. However, you should seriously consider hiring a lawyer to represent you during the process. There is a significant risk of error if you take the DIY approach. You might not understand your rights under state law and how to address specific aspects of your marriage to protect your interests.
That’s where Smith Family Law can step in to ensure you execute a valid and legally enforceable contract. We can analyze your financial situation, distinguish between marital and separate property, and incorporate the appropriate language to meet your needs and goals. We also know how to identify every asset and debt a couple owns to prevent surprises in the future.
Using premade forms you find online might save you money. However, if you make a mistake and get divorced at some point, hiring a postmarital agreement lawyer in Austin to take the matter to court to fix the problem can cost you more than if you had sought legal representation from the start.
You and your spouse should also hire separate lawyers. Using the same one can make the postnup invalid and unenforceable in Texas.
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How to Modify a Postmarital Agreement
You can change your postmarital agreement at any time during your marriage. Some married couples decide to amend their original postnup when certain events occur, such as:
- Tax changes
- Birth or adoption of a child
- Starting or growing a business
- Buying a home
- Development of new marital issues
- Significant decrease or increase in assets or income
- Large inheritance
- One spouse changes careers or leaves their job to raise the kids
- Acquiring a high-value asset
Amending a current postnup requires agreeing to the new terms and putting the changes in writing. You should hire Smith Family Law for the modification. We can ensure everything is in order and the new agreement is legally enforceable.
Speak to a Knowledgeable Postmarital Agreement Lawyer in Austin Today
Smith Family Law can help you navigate the complicated process of forming a postnup suited to your needs. Our legal team will explain your options and rights so you know the terms you should include to protect yourself if the unexpected happens.
If you want to execute or modify a postmarital agreement, call Smith Family Law at (512) 277-3166 for your free consultation. Let us safeguard your finances so you can move forward in your marriage feeling secure.