While you have probably heard of a prenuptial agreement, you may not be aware that you can also enter into a similar agreement after you are married. A postnuptial agreement is a contract between spouses that outlines what will happen if the couple ends up getting divorced. These agreements are essentially the same as a prenuptial agreement, except that a couple enters into a postnuptial agreement after they are married.
Postnuptial agreements have a variety of uses, depending on a couple’s circumstances. While they cannot address child custody or support, they can be used for financial matters such as the characterization and division of property. However, to ensure the agreement comports with Texas Law, anyone interested in creating a postnuptial agreement in Texas should work with an experienced Austin divorce lawyer.
At the Law Office of Jason Wright, we help spouses draft effective and enforceable postnuptial agreements. Attorney Jason Wright has worked with clients from all walks of life, across the economic spectrum, to help them provide certainty in the event of divorce. He takes a practical approach to every matter he handles, avoiding unnecessary drama, which often leads to litigation. Contact our law firm today to schedule a consultation with an Austin postnuptial agreement attorney.
A postnuptial agreement (often referred to as a “postnup”) is a type of contract two spouses enter into that covers what will happen if the couple gets divorced. While a prenuptial agreement is created before marriage, a postnuptial agreement often involves the same type of terms but is entered into after the couple marries.
In Texas, parties have a broad ability to contract. However, postmarital agreements tend to raise some concerns because they often limit one spouse’s right to pursue legal options in the event of a divorce. Thus, these documents are often scrutinized, making it imperative that individuals work with an experienced divorce lawyer when drafting a postnuptial agreement.
One of the most common questions people have about postnuptial agreements involves when they need to get one. Sometimes, although not always, spouses enter a postnuptial agreement when something has happened that raises the possibility of a future divorce. For example, if one spouse is unfaithful, the other spouse may only agree to remain married if the unfaithful spouse signs a postmarital agreement.
Postnuptial agreements can also be used by couples who plan to get a divorce but want to save money by resolving some of the issues themselves. In this way, the postmarital agreement serves as a template for a separation agreement.
However, postnuptial agreements are not limited to situations in which divorce is on the horizon. Some couples use postnuptial agreements to clarify what will happen in the event of one spouse’s untimely death. Another reason a couple may want to draft a postnup is if one spouse rather unexpectedly stands to receive a significant amount of money. In this case, the couple’s changing financial circumstances may justify discussing what would happen if they ever got divorced.
A postnuptial agreement may also make sense in the following situations:
A postnup can also be signed simply because a couple didn’t consider getting a prenuptial agreement before marriage. These types of agreements are not a sign that a couple is headed for divorce. Instead, they can just be a practical way to address financial issues in the event that they do ever get divorced.
Many couples seek a postnuptial agreement after watching friends and family members go through contentious divorces. While having a postnup does not guarantee that your divorce will be easy, it can often streamline the financial aspects of the process. If you see someone spend tens of thousands of dollars in legal fees fighting over a piece of property or spousal support, it may motivate you to get a postnuptial agreement even if your marriage is perfectly happy.
Whatever your reasoning may be, a postnuptial agreement can be a good way to set out each spouse’s rights and obligations in a divorce. Our Austin postnup attorneys can advise you of your options and work with you to draft an agreement that complies with Texas law and meets your needs.
The purpose of a Texas postnuptial agreement is to provide some much-needed clarity. However, there are some limits on what can be included in a postnup. Certain issues involving children are beyond the scope of a postnuptial agreement. For example, you cannot include a term awarding one spouse custody of a child. Similarly, you cannot limit the amount of child support that one spouse would be required to pay.
Otherwise, Texas postnups can cover many of the other issues a court would otherwise need to decide during a divorce. These include:
However, you cannot include any term in a postnuptial agreement that violates public policy or is otherwise illegal. For example, if one spouse is earning money from criminal activity like dealing drugs, they can’t put a provision in a postnuptial agreement that this money is their separate property. A Texas prenup also cannot be unconscionable, or so one-sided that they are unfair and unjust to one spouse.
It may be possible to challenge the enforceability of a Texas postnuptial agreement. While these contracts (known as marital property agreements) are generally allowed under Texas law, they must still meet certain requirements to be valid and enforceable.
First, like prenuptial agreements, postnups must be in writing and signed by both parties. While Texas law does permit oral contracts in some circumstances, postnups must be in writing. You cannot simply tell the court that you agreed to X or Y after you were married; you will need a written agreement.
Second, both parties must be legally capable of entering the agreement and must enter into it voluntarily. To be legally capable, you must be 18 years of age or older and mentally competent. If one person is dealing with mental health issues and their spouse visits them in a psychiatric hospital and gets them to sign the postnup while they are heavily medicated, the contract would likely be invalid.
To be voluntarily signed, both parties must have chosen to sign the document of their own free will, without fraud or duress. For example, one spouse can’t lie and tell their partner that the document is about something else and get them to sign the postnup without reading it. Similarly, if one spouse exerts undue pressure on the other, it could be the basis for invalidating a postnuptial agreement. If both spouses have the opportunity to review the agreement and seek independent legal counsel, this can help to show that the agreement was entered into voluntarily.
Third, both spouses must fully disclose all assets and debts before the agreement is signed. This ultimately goes to fairness: if one party hides assets or debts from the other, then they can’t truly know what they are agreeing to in the agreement. If the unknowing spouse can prove that their partner did not fully disclose all of their financial information before the contract was drafted and signed, a court may invalidate the agreement.
Lastly, the agreement must be fair and reasonable. Texas courts have the ability not to enforce a postnuptial agreement that has terms that are extremely one-sided, particularly if it will put one spouse in a financially precarious position. The agreement also cannot include provisions related to child custody and support or any illegal or unconscionable provisions.
Many websites offer fill-in-the-blank type postnuptial agreements for sale. While it may be tempting to save money by getting a template, doing so means that you will take the risk of your agreement being invalidated. This may cost you more money in the long term. The best way to get a valid, enforceable postnuptial agreement that protects your interests is by working with an experienced Austin postnup lawyer.
If you or your spouse is considering a postnuptial agreement, reach out to the Law Office of Jason Wright for immediate assistance. Attorney Wright is a knowledgeable Austin divorce lawyer with extensive experience helping his clients draft and review postnuptial agreements. With his help, you can make sure that the agreement you enter into represents your interests and is legally enforceable, providing you with the certainty you are looking for.
To learn more and schedule a confidential consultation, contact the Law Office of Jason Wright at 512-706-9662 today. You can also reach Attorney Wright through the firm’s online contact form.
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