Protect Your Assets & Property With Professional Legal Guidance
InTexas, a prenuptial agreement (or premarital agreement) is a legally binding contract signed prior to marriage.
If the marriage ends in divorce, a valid prenup makes the divorce process faster, less costly and without complications. In order for the prenup to be valid and enforceable, there are several elements that must be included in the agreement.
If you are contemplating a prenup, schedule a private and confidential consultation with Jeff Anderson, a board certified family law lawyer in Frisco, TX and the greater DFW area.
Defining Premarital Agreements In Texas
A “premarital agreement,” sometimes called a prenup or prenuptial agreement, is a legal agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.
A premarital agreement must be in writing and signed by both parties, which will become effective upon marriage. A premarital agreement may be amended or revoked in Texas, but it must be a written agreement, and signed by both parties.
If you’re considering a prenup, or curious how to get started, you need to hire an attorney with experience in constructing premarital agreements. If written properly, this agreement will legally protect your assets in the event of a divorce.
The legal definition of a premarital agreement can be found in the Texas Family Code Section 4.001.
BENEFITS OF GETTING A PRENUP
Some spouses may balk at the idea of having a “prenup”. They think it demeans their love and trust in their spouse and is a sign they do not expect the marriage to last.
Those are valid thoughts, but there’s another way to think about a prenup. Think of it as insurance for your home or car. You do not expect to use the insurance and hope you never have to file a claim. More than likely, the odds are against you ever really needing the coverage. But, if you do have an accident, you will be grateful for the coverage.
Consider the benefits below if you are in any of the following categories.
- You earn a high income and have a substantial net worth at the time you enter into the marriage.
- You own a business or you might want to start a business using your separate property.
- You already own property that you want to keep as your separate property without any question if you should divorce.
- You and your new spouse have both been married before and have children from your prior marriages.
If a marriage ends in divorce or both parties agree that they want to part ways, it is still an emotional experience. The stress of making property division decisions is reduced if a prenup is in place, which clearly covers the distribution of assets and debts.
Introducing A Premarital Agreement With A Future Spouse
The simple answer is to First, tell your future spouse that you would like to get a prenup because it’s important for both parties to discuss what they’d like to see in the agreement, in addition to making a list of the property and other issues that they’re going to include in the contract.
You should know that both parties will need to hire their own attorney. In short, one attorney cannot represent both spouses as they draft and sign a premarital agreement in Texas. The prenup can go through many different drafts before the parties agree to its terms, but once both parties do agree, they’ll sign the contract, thereby making it official.
What Issues Can a Prenuptial or 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.
Circumstances in Which a Premarital Agreement Will Benefit You:
- You earn a high income and have a substantial net worth at the time you enter into the marriage.
- You own a business or you might want to start a business using your separate property.
- You already own property that you want to keep as your separate property without any question if you should divorce.
- You and your new spouse have both been married before and have children from your prior marriages.
When marriages end in divorce, even when both parties agree that they want to part ways, it is still an emotional time. The stress of making property division decisions is reduced if a prenup is in place, which already covers the distribution of assets and even debts.
Get Help With Your Prenup
Regardless of what type of marital agreement you are considering, Jeff Anderson Divorce & Family Law is the prenup lawyer you want holding the pen.
How Can I Make Sure My Prenuptial Agreement Is Enforceable And Valid?
In Texas, a prenuptial agreement must be in writing and signed and dated by both parties. The prenup may cover all eventualities and possible circumstances or be limited to specific property. The prenup can include whether or not spousal support will be paid and, if it is, how the amount will be determined. The only limitation to items covered in a prenup is that it cannot include, with any degree of enforceability, most items involving children – custody, visitation and support.
Checklist to Ensure Your Prenup Remains Valid:
- In Texas, a prenuptial agreement must be in writing and signed and dated by both parties. The prenup may cover all eventualities and possible circumstances or be limited to specific property.
- The prenup can include whether or not spousal support will be paid and, if it is, how the amount will be determined. The only limitation to items covered in a prenup is that it cannot include, with any degree of enforceability, most items involving children – custody, visitation and support.
- Items to include in the pre-marital agreement in order for it to be valid:
- All assets of both parties must be fully disclosed. If assets are later discovered during the process of a divorce that were not included, the agreement may be subject to a more vali attack.
- The parties must both disclose their current income and any expected change in future income.
- The document must be voluntarily signed without any coercion. The further in advance of the marriage that the document is signed, the more likely a court will find it was voluntarily signed. An agreement signed 30 to 60 days in advance will have a greater likelihood of enforcement than one signed the day before vows are taken.
HOW CAN I CHALLENGE THE VALIDITY OF A PRENUPTIAL AGREEMENT?
Although courts generally enforce prenuptial agreements, a party can challenge its validity and have the contract proven invalid if that person can prove:
- That the agreement was not signed voluntarily; or
- The agreement was unconscionable when it was signed and before signing the agreement, the wronged person:
- Was not provided with a disclosure of the other person’s assets and debts;
- Did not expressly waive disclosure of those assets and debts; and
- Could not have reasonably known what the assets and debts were.
If a prenup is signed voluntarily and with full knowledge of all assets, the court will not likely later invalidate it just because it is unfair. If the person signing it made a bad decision, that is not an issue for the Court and, unless the court finds the agreement unconscionable, involuntarily signed or against public policy, the unhappy member of the couple will have to live with his or her unfortunate choice.
TEXAS PREMARITAL AGREEMENT LAWS EXPLAINED
We know you have questions. Don’t worry, we have answers. Are you asking yourself…
- How do I get a prenuptial agreement?
- If I’m already married, can I still enter into a valid Texas premarital agreement?
- What does it take to void a premarital agreement in Texas when a couple decides to divorce?
As a family law attorney we are often asked questions like these about premarital agreements, which are more commonly referred to as prenuptial agreements outside the Courtroom.
Texas Law and Premarital Agreements Under Texas’s Uniform Premarital Agreement Act: a premarital agreement is defined as
“an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.”
Soon-to-be spouses can list many types of property and assets for protection in a prenup contract, including but not limited to:
- The parties’ rights with regard to specific property;
- Rights to sell, buy, use, dispose of, and control specific property;
- Disposition of property in the event of a separation, divorce, or death; and spousal support.
Prenup laws also allows the parties to contract about many other issues that may arise in the marriage or in the event of divorce, as long as the parties’ agreement doesn’t violate public policy or the law. So what types of questions tend to arise when couples are considering premarital agreements?
DO I NEED A LAWYER FOR A PRENUP OR CAN I USE AN ONLINE SERVICE?
If you want a premarital agreement that will hold up in court and remain valid for the duration of your marriage, we highly recommend that you seek professional legal counsel.
If you can find an attorney that’s board certified in family law by the Texas Board of Legal Specialization like Jeff Anderson, even better.
MY HUSBAND AND I WANT TO HAVE A PREMARITAL AGREEMENT, ARE WE TOO LATE?
In short, yes. Under Texas Family Code § 4.102 PARTITION OR EXCHANGE OF COMMUNITY PROPERTY,
“At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. The partition or exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse.”
A lawyer can talk with you about this type of agreement today. A premarital agreement is precisely what it says it is: an agreement that happens before the marriage.
However, if you and your spouse want to have a formal contract that outlines your rights and responsibilities with regard to certain property, you can still enter into a contract together.
HOW CAN I AVOID OR GET OUT OF MY PREMARITAL AGREEMENT?
According to a recent discussion in Texas Lawyer, premarital agreements are very difficult to void in Texas. While spouses can agree at any time to amend or revoke their prenup as long as both parties agree, a premarital agreement will only be deemed unenforceable in three general types of situations:
- One of the parties didn’t voluntarily sign the agreement;
- The agreement itself was unconscionable; or
- The marriage itself—for which the prenup applied—is determined to be void.
HOW FAR IN ADVANCE SHOULD I CONSIDER GETTING A PRENUP?
It’s a good idea to start thinking about the terms of a prenup well in advance of your wedding—at least a few months out from the date on which you’re planning to be married.
Then, it will be important for both parties to hire an experienced Texas family lawyer to draft the premarital agreement. Do you have questions about Texas premarital agreements? Contact Jeff Anderson today for answers and legal counsel.
PRENUP LAWYER SERVING DALLAS, PLANO, FRISCO, AND THROUGHOUT TEXAS
Jeff Anderson has over 30 years experience in creating and defending premarital agreements and can help you decide if a premarital agreement is right for you and negotiate the best possible agreement on your behalf.
Premarital agreements are an excellent opportunity to utilize the collaborative law process so that both parties’ needs are met and negotiations are constructive rather than destructive.