Marital Agreements: Get a Lawyer’s Help
Premarital and marital property agreements in Texas have a long, complex history steeped in the community property presumption, the state constitution, statutes, and case law. Originally, such agreements were disfavored by the Texas courts and traditionally found to be unenforceable. However, as a result of amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, the marital agreements are generally held to be a valid and enforceable.
In Texas, spouses can have a pre-marital agreement or post-marital agreement. A premarital or post-marital agreement can have a lasting impact on your divorce, property division, and even spousal maintenance. If you are considering any type of marriage contract, speak with a marital agreement lawyer first to protect your assets and property.
A premarital agreement is a contract executed by a prospective couple contemplating marriage that lists each person’s rights and obligations in case of a potential divorce. These contracts can be as detailed, or as vague as the person who authors them, and they must meet certain criteria to remain valid and hold up in court.
What Issues Can a Marital Agreement Address?
Texas Family Code § 4.003 describes a comprehensive list of matters which might be dealt with in a premarital agreement.
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Postnuptial agreements are marital contracts made after a couple is married. Contracts made during marriage deal with partitions and exchanges that basically detail which assets, property, and money is kept out of the community property in the incident of a divorce.
What is the purpose of an agreement like this?
Well, in case of a divorce or even death, time and money could be saved. It is always smart to plan ahead and to plan for worst case scenarios, while still hoping for the best.
Writing marital agreements takes talent, experience, and forethought. These agreements don’t get attacked when they are created and signed, they get attacked when they are really needed – during a divorce. That’s why it is so important to have an attorney with the skillset to draft an agreement up front and counsel you about how to conduct your financial life after the wedding (or after the post-marital agreement is signed) to preserve what has been accomplished in the agreement. With the wrong attorney drafting it, your agreement might not be viable when and if the time to use it arrives.
Jeff Anderson has decades of experience and expertise that can help you protect your estate from the outset and help you rest assured that the deal you make is the deal you can count on. It’s just part of what we do.