Marriage is a legal partnership. And like other partnerships, soon-to-be spouses have certain expectations about what the marriage will look like. People grow apart, priorities change over time, parenting differences become impossible to ignore; while divorce is not something that anyone hopes to go through, sometimes it is the best option.
However, divorce can be incredibly stressful. Much of this stress stems from the uncertainty around the process. A prenuptial agreement is one way couples can eliminate much of this uncertainty. A prenup can set out the rules for spousal support or contractual alimony and property division before a marriage, which can often make the divorce process more streamlined.
At the Law Office of Jason Wright, we have extensive experience working with individuals to develop comprehensive and effective premarital agreements. Our goal is to draft prenups that protect our clients’ interests and that will be upheld under Texas law. With our help, you can get rid of the “what ifs” so you can focus on enjoying your new life together. Contact our law firm today to schedule a consultation with an Austin family law attorney about a prenuptial agreement for your pending marriage.
A prenuptial agreement, or premarital agreement, is an agreement between soon-to-be spouses that outlines what will happen in the event of a divorce. A prenup will go into effect when the couple gets married. At this point, the prenuptial agreement becomes a binding legal contract, and the couple is bound by its terms.
For most couples, the goal of getting a prenuptial agreement is to establish what will happen related to their property in the event of a divorce. It does not mean that you are planning to get divorced. Instead, it is a way to gain some certainty about each spouse’s rights related to property when it comes to divorce.
When it comes to divorce, Texas law imposes a set of default rules. For example, Texas is a community property state, meaning when someone files for divorce, the law will presume all property belongs equally to both spouses. All community property is then subject to division in the divorce.
A spouse can own separate property that is not considered community property during a Texas divorce. This may include assets that belonged to one spouse before marriage, property acquired during the marriage by gift or inheritance, or personal injury awards. However, a spouse must offer clear and convincing proof of separate ownership if they want a court to designate it as separate property.
By creating a premarital agreement, couples can devise a set of rules that work for them. This includes listing separate property that will not be considered community property during a divorce. As long as the prenuptial agreement is valid, this will eliminate the need to prove to the court that your separate property is, in fact, separate.
Dividing property during a Texas divorce can be challenging. A prenuptial agreement is one way to ensure that your financial interests are protected during a divorce. You can also use a prenuptial agreement to:
Importantly, having a prenup does not mean that your marriage is more likely to end in divorce. It is simply a smart way to plan for your future and protect your financial stability if you do get a divorce.
Prenuptial agreements allow couples to clarify what will happen in the event of a divorce. However, the agreement can only address issues related to property, debts, and money. For example, a Texas prenup can cover the following:
Additionally, a premarital agreement could provide for different rules based on the reason for divorce. For example, you may include specific language providing for a different property distribution agreement if the marriage ends due to a spouse’s infidelity.
However, some issues are beyond the scope of a premarital agreement. For example, a prenup cannot include an agreement about child custody. This is because child custody determinations focus on what is in the child’s best interest, which is something the court must decide. Similarly, you cannot include an agreement about child support obligations, as the right to child support technically belongs to the child, even though the payments are made to the custodial parent.
Spouses are also prohibited from including any terms that violate public policy or would result in a violation of the law. For example, you cannot include a term allowing either party to take on another spouse. Bigamy (being married to more than one person at a time) is illegal in Texas, and courts will not enforce any provision leading to an illegal outcome.
The rate of divorce in the United States hovers around 40 percent. Thus, any couple can benefit from the certainty provided by a prenuptial agreement. However, prenuptial agreements are particularly useful in marriages in which:
There is a common misconception that prenuptial agreements are only for the very wealthy. While prenups have traditionally been used by people with significant assets, they can be helpful for people in all income brackets.
Divorce can be expensive. In addition to paying lawyer’s fees, you will be establishing two separate households and splitting your assets. Having a prenuptial agreement can help to keep costs low by avoiding costly, stressful litigation over property division. This can actually be far more important for a couple without significant assets whose finances will be more strained by years of legal expenses.
Prenuptial agreements are also an excellent idea for people in a second marriage, particularly if either person has children from a prior marriage. A prenup can make sure that your kids will still inherit from you in the event of your death. Many couples who get married later in life can benefit from a prenuptial agreement that explicitly spells out each spouse’s property rights in a divorce.
Ultimately, the decision to get a prenuptial agreement is a very personal one. It is an incredibly practical decision from a financial planning standpoint. Marriage isn’t just about romance; it is also a legal and financial matter. A prenuptial agreement is a commonsense way to protect both spouses financially if you do get divorced.
Texas follows the Uniform Premarital Agreement Act (UPAA), which sets the rules for the validity of prenups. As a general rule, prenuptial agreements are valid in Texas. However, courts tend to look closely at the terms of a premarital agreement because, in some cases, they involve a less wealthy spouse giving up important rights.
To be valid in Texas, the prenuptial agreement should be:
Thus, prenups must be reasonable to both sides; otherwise, a court may not enforce the agreement. If a couple is interested in creating a prenuptial agreement, it is good for each spouse to have their own attorney review the document to ensure that it represents their interests. Not only will this ensure that the agreement is equitable to both sides, but it will increase the likelihood of the court upholding the agreement.
There are many reasons why a Texas court may invalidate a prenuptial agreement. For example, a court might decide that the prenuptial agreement was unconscionable when it was signed by the parties. In other words, the contract terms were unfair or oppressive to one party. There isn’t an exact test for when a prenup is considered unconscionable, but an extremely one-sided prenuptial agreement has a higher chance of being invalidated than a more even-handed contract.
A Texas court may also invalidate a prenuptial agreement if one spouse did not make a full financial disclosure before signing—or fully waiving the disclosure in writing. This goes back to fairness: if both people aren’t aware of the other’s assets and debts, they aren’t making an informed decision about how to divide their property in a divorce.
Similarly, a Texas court may invalidate a prenuptial agreement if it wasn’t signed voluntarily. For example, if your spouse presented a prenuptial agreement to you the morning of your wedding and said that the wedding is off unless you sign it, the contract may be invalidated. A person should sign a prenuptial agreement of their own free will, not because they were tricked, coerced, or threatened into doing so. If each party has their own legal representation, that reduces the likelihood of a successful argument that the prenup wasn’t fair or voluntarily signed.
The point of having a prenuptial agreement is undermined if it isn’t a valid, legally binding contract. While there are options for getting an online prenup, these agreements may not stand up to scrutiny in a divorce. Our Austin prenup attorneys can evaluate your situation, advise you of your options for a prenuptial agreement, and draft the agreement for you. If you do get divorced, our Austin divorce lawyers will advocate for you throughout the process, including arguing that the prenup is both valid and enforceable.
If you are about to get married and want to learn more about Texas prenuptial agreements, contact the Law Office of Jason Wright to schedule a confidential consultation. Attorney Wright is an experienced divorce and family law attorney who takes a practical approach to each case he handles. He understands that not every issue has to turn into a fight and takes every step to resolve issues amicably whenever possible.
At the same time, as an experienced trial lawyer, Attorney Wright commands an impressive presence in the courtroom, which he uses to advocate on behalf of his clients whenever necessary. To learn more and schedule a confidential consultation today, reach out to the Law Office of Jason Wright at 512-706-9662. You can also reach Attorney Wright through the firm’s online contact form.
“Jason is very professional and friendly. He patiently explained everything as many times as I needed and made the law easier to understand. Gave great advice and listened to all of my suggestions walking me through if they would work or not.”
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