You can depend on Smith Family Law for quality legal representation and support whether you want to create or modify a premarital agreement. Contact us now to learn how we can help.
A prenup can bee a valuable asset in a marriage. It offers multiple protections, including safeguarding your property if you get divorced. It also reduces the risk of disputes in the future. You should consider drafting one to outline your and your spouse’s financial responsibilities and expectations while married and determine how to split everything in a divorce.
Smith Family Law aims to pursue an outcome that meets your needs and legal goals. We understand how overwhelming it can be to discuss divorce before walking down the aisle. However, it is a necessary conversation to protect you if the unexpected occurs. Call us at (512) 764-1044 for a free consultation with a premarital agreement lawyer in Austin.
What Is a Premarital Agreement?
A prenup is a contract two people sign before their marriage. Typically, it determines the division of assets in a divorce, such as retirement funds, bank accounts, motor vehicles, and real estate. It can also address numerous issues in the event of a marriage, divorce, or a spouse’s death.
You must finalize your premarital agreement before the marriage begins, and it becomes effective on the date you and your spouse legally marry. A postmarital agreement is a contract you draft when you’re already married.
Should I Draft a Prenup?
It depends on your specific needs and plans for the future. You might think a prenup is only necessary if one or both spouses is a high net-worth individual or has significant assets. However, prenups are beneficial for any couple.
You should consider getting a prenup if:
- One of you is wealthier than the other
- Either of you has significant debt
- You share children
- You or your spouse bring assets into the marriage
- One or both of you want to secure your estates
- This is a second or subsequent marriage for either of you
Marital Issues A Prenup Can Cover
A premarital agreement can determine various aspects of a couple’s marriage and what should happen if they get a divorce, including:
- How to allocate real and personal property if the spouses separate, divorce, or one of them dies
- Which state’s laws should govern the matter if disputes arise while negotiating the terms of the agreement?
- Who has rights to transfer, lease, buy, use, assign, sell, mortgage, dispose of, control, or create a security interest in the property?
- Either spouse’s rights to spousal maintenance
- Each spouse’s obligations and rights to marital property
- Executing a trust, will, or other estate planning document to support the terms of the prenup
- Rights to death benefits from a life insurance policy
Requirements for Creating a Legally Enforceable Premarital Agreement
The Uniform Premarital Agreement Act (UPAA) includes the necessary elements of a prenup to ensure it is valid and legally enforceable under state law. Your prenup must meet these requirements:
- The contract is in writing.
- Consideration isn’t necessary, meaning one party does not have to give something to the other to show their support for the prenup.
- Both parties must participate in negotiating the terms and execute the document with a view toward an upcoming and definite marriage.
A court can deem a premarital agreement invalid and unenforceable if any of these statements apply to the circumstances:
- Either spouse doesn’t voluntarily sign the contract.
- It is an unconscionable agreement, meaning it would be against the interests of justice to enforce it because it is so grossly unfair.
A judge will review a prenup to determine whether it is unconscionable. A premarital agreement is unconscionable if any of these factors exist:
- One spouse didn’t voluntarily and expressly waive their right to the disclosure in writing.
- One spouse didn’t provide the other with reasonable and fair disclosure of all their owned property and financial obligations.
- One spouse did not or could not reasonably have had sufficient knowledge of the other’s financial obligations and property interests.
Including Child Support in a Prenup
You can’t use a prenup to limit the amount of child support one spouse will pay the other if you divorce or separate. The courts determine child support payments based on the child’s best interest. Even if a judge orders one parent to pay the other, the money is solely to financially provide for the child instead of for the parent to spend on themselves.
Modifying a child support order is necessary if either parent’s financial circumstances change. That means the judge must determine whether to increase or decrease the payment amounts based on what’s fair and reasonable according to the situation.
Deciding whether one parent will pay child support and how much the payments should be in advance is not allowed. Family court judges rule on this type of case by reviewing the circumstances and facts and basing a decision on the child’s best interests. The judge likely won’t consider your premarital agreement during the decision-making process, even if it includes terms about support.
Advantages of Establishing a Prenup Before Getting Married
A prenup offers multiple benefits. Since Texas is a community property state, any property you or your spouse acquires while married is subject to division during a divorce. However, it doesn’t necessarily mean you will receive equal shares. Creating a prenup preserves your rights to half of all marital property. You also have more control since a judge doesn’t decide how to distribute everything.
Assets and Business Interests
Separate property is property either spouse acquires before marriage. It is not subject to division during a divorce. However, claiming sole ownership of an asset before getting married requires substantial evidence. Sometimes, married couples forget which property they own together and separately, especially if the marriage lasts for a long time. With a premarital agreement, you have written evidence of each person’s separate property.
A prenup can also protect your business interests. It is beneficial if you own a business and don’t want your spouse to have rights to it if you get divorced.
A premarital agreement can mitigate the risk of arguments or legal action over one spouse’s rights to the marital home if the other dies. This is especially helpful if one of you has children from a previous marriage.
You can protect a child or grandchild’s inheritance rights by incorporating assets into the premarital agreement. Instead of property meant for the children or grandchildren getting distributed to one spouse after the other’s death or a divorce, the prenup clearly outlines where the assets should go.
You can use a prenup to waive spousal maintenance if you get divorced. You can also use it to determine the amount one will pay the other if one of you should receive financial support.
Frequently Asked Questions
Talking to your partner about divorce can be awkward when you aren’t even married yet. You must consider several factors while deciding what to include in your prenup.
You likely have many questions about a premarital agreement. Smith Family Law answered some of the most common questions our clients ask. You should review them, so you know what to expect.
How Much Will It Cost to Draft a Premarital Agreement?
It depends. There isn’t a set price for creating a prenup. The filing fees, your attorneys’ fees, and other necessary expenses will determine the total cost.
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Will My Prenup Cover a Legal Separation?
Texas doesn’t recognize legal separations. If you and your spouse separate, nothing will happen to your assets. You won’t have greater or fewer rights to the marital home or other community property than the other. Community property isn’t subject to division until someone files for divorce.
You can protect your interests during the separation period and resolve potential issues by signing a temporary agreement. It allows you to negotiate specific matters related to your marriage, such as property division and spousal maintenance. If the judge approves, they can include it in your divorce decree when you file.
A suit affecting the parent-child relationship decides on child custody, visitation, and child support despite not filing for divorce. You and your spouse can agree to the terms and file the request for a judge to approve.
Can I Make Changes to the Premarital Agreement?
Yes. You must create a new written agreement if you or your spouse wants to modify the prenup while married. The new agreement is called a postmarital agreement.
Get Help with Your Premarital Agreement Today
At Smith Family Law, we understand the confusion that can arise while drafting a prenup. Any legal aspect of preparing for marriage can seem unromantic or unnecessary. However, a premarital agreement can protect you in various situations.