If you ask engaged couples what they think about getting a prenuptial agreement prior to marriage, you’ll get a variety of answers. Some people feel uncomfortable signing a prenup because they view them as a bad omen for their marriage. Others believe prenups set their marriages up for success because they understand how finances will be handled both during marriage and in the event of divorce. The question is: Is a prenup a good idea for you? It depends.
What is a prenup in simple terms?
A prenup, referred to as a premarital agreement in Texas, is a legal contract mutually agreed to by two parties prior to marriage. The prenuptial agreement takes effect once the couple is married and must be in writing and signed by both parties in order to be valid. In general, most prenups stipulate how property and assets will be handled during marriage and in the event of divorce. However, what you can include in a prenup and what makes a prenup enforceable varies from state to state.
What does a prenup protect in Texas?
Prenups can allow you to protect your rights and obligations to property and assets, as well as certain personal rights and obligations you stipulate—as long as those stipulations don’t violate the law. Unlike other states, Texas is a community property state, which means any property acquired during marriage is considered community property and subject to just and right division upon divorce.
Some couples use prenups to clarify what property is considered each party’s separate property, which may include property acquired before marriage, as well as gifts, inheritance and personal injury awards acquired during marriage. It also isn’t unusual for some prenups to stipulate that each party’s salary, retirement account income, business income and other assets remain as separate property during marriage or upon divorce.
As the Texas Family Code Uniform Premarital Agreement Act states, the state of Texas allows premarital agreements to be contracted to include:
- Rights and obligations of each party regarding property belonging to either or both parties.
- Rights of the parties to buy, sell, use, transfer, manage and control property, among other rights.
- How property will be disposed following separation, divorce, death or other life event.
- Modification to or elimination of spousal support.
- Arrangements for wills, trusts, life insurance and other requirements needed to support provisions of the agreement.
- Ownership rights and disposition of life insurance benefits.
- The choice of law governing the construction of the agreement.
- Other matters of the couple’s choosing, including personal rights and obligations, as long as they don’t violate public policy or laws that impose a criminal penalty.
The state of Texas is also clear regarding what you CANNOT include in a prenup. Texas does not allow you to stipulate that you won’t be responsible for paying child support.
You also can’t change the designation of your property from separate property to community property in a prenuptial agreement in Texas. You will need to make those changes after you marry through a Marital Property Agreement, which is also referred to as a partition agreement in Texas.
What happens if you sign a prenup?
Once you sign a properly executed and enforceable prenuptial agreement, the stipulations you and your spouse agreed to are legally binding once you wed. Which leads many people to ask, how long is a prenup good for in Texas?
Valid prenups are enforceable in Texas through the duration of the marriage and finalization of divorce unless both parties agree to amend or revoke the agreement in writing. Like the prenup itself, both parties need to sign the new agreement for changes to be made, and if they don’t, the stipulations defined in the existing prenup remain in place and enforceable.
That’s one of the many reasons it’s vitally important to seek legal advice before signing a prenup. You could be stuck with that contract for life if you’re not careful.
The best prenup agreements serve both parties fairly
And the best interest of both parties and transparency is required in order for a premarital agreement to be enforceable in Texas. The state drafted the Texas Uniform Premarital Agreement Act with that intent in mind.
What is a fair prenup? The state generally won’t enforce a prenuptial agreement that is clearly intended to be unfair or largely of service to one party over the other or misrepresents property and other assets in the marital estate. A party can argue that a prenup is not enforceable in Texas if they can prove:
- They didn’t sign the agreement voluntarily; or
- The agreement was unconscionable (not right) when the party signed it, and they:
- Were not provided fair and reasonable disclosure of the property or financial obligations of the other party;
- Didn’t voluntarily waive and express in writing the right to that disclosure beyond the disclosure provided;
- Didn’t have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
In simple terms, if someone thinks they can get away with hiding community property and other assets, and deliberately and secretively not include them in a prenup, that’s not going to fly. That deception (unconscionable behavior) when proven renders the prenup unenforceable.
Prenuptial agreement pros and cons
There are varying opinions when it comes to getting a prenuptial agreement. While some Texas couples find it to be a prudent to get a prenup before a wedding, others believe it casts a shadow of distrust over their relationship. Ultimately, the decision to get a prenuptial agreement is a personal one, and there are prenup pros and cons you should consider before signing on the dotted line.
On the pro side of prenuptial agreement pros and cons, one advantage of a prenuptial agreement is that it may help you override community property laws. In states such as Texas, marital property is subject to just and right division upon divorce. A prenuptial agreement can come in handy for those who have a successful business and business income they want to keep as their own or other valuable assets they want to protect. Another potential benefit is protection from being held responsible for a spouse’s debt under certain circumstances.
An attorney may also be able to advise a client regarding how a prenuptial agreement may add further protection for high-value assets or assets that may have sentimental value. Clarifying separate property in a prenup can help simplify division of the marital estate should a divorce occur.
Prenups can also be a helpful tool for couples who want to clarify how finances will be handled and what personal expectations each party has for the other during the marriage. For example, if both spouses work and want to keep a portion of their salaries in their own bank accounts, the prenup can stipulate that, as well as who is responsible for paying what bills. Personal expectations may include agreeing to having marital relations a certain number of times per week.
The process of spelling out these rights and obligations prior to marriage can help couples enter into marriage on a clear path with less likelihood for unpleasant surprises down the road.
On the con side of the prenup pros and cons, a potential downfall to a prenuptial agreement is that you may risk giving up too many rights prior to a wedding. Some individuals tend to think more about marital bliss and romance as opposed to the possibility that the union could end.
In addition, Texas is one of the few states that allows you to waive your right to alimony or spousal support in a prenuptial agreement. While you may be earning a hefty income now that allows you to comfortably support yourself, what if your life circumstances change? Waiving your right to spousal support may have disastrous consequences should you become incapacitated and your marriage ends in divorce.
Additionally, it may be difficult to accurately predict how a couple’s finances will evolve over time. Therefore, the agreement may not reflect your desires months or years into the future—unless you hire a skilled attorney to educate you about potential ways to protect yourself and your assets as your income grows and you accumulate assets and property over time.
Why you should hire an attorney for help with a prenup
A prenuptial agreement can be a useful tool to help an individual protect his or her rights and obligations to property and other assets in the event of a divorce. However, prenups don t work when they aren’t executed properly, which is why we highly recommend hiring an experienced family law attorney to guide you.
As noted above, prenups need to follow specific guidelines in order to be enforceable. The state of Texas also has strict requirements regarding how contracts, including premarital agreements, should be drafted and what language should be used. If you don’t understand the intricacies of prenuptial agreements and contract language, you could be putting your rights at risk.
An experienced attorney can also explain how do prenuptial agreements work and what rights you’re giving away when your betrothed presents you with a prenup to sign. Both parties to a prenup should always hire their own separate attorneys to represent them during prenuptial agreement negotiations. Don’t let anyone try to persuade you otherwise.
Even if you believe your fiancé has your best interests in mind, his or her family and/or attorneys may not. Remember, once you agree to and sign an enforceable prenup, that agreement is binding and you and your spouse can only amend or revoke the agreement if you both agree to do so and put it in writing. What do you think the odds are for that happening if you end up in a nasty divorce?
Is a prenup a good idea for you? Contact us to find out
Are prenups good for everyone? Honestly, not every couple needs a premarital agreement, especially those couples who own few if any assets. However, if you or your future spouse do own significant assets, have business interests and income, or plan to have children, a custody and divorce lawyer at our firm can explain how you can protect your rights, property, assets, business holdings, income and children’s futures with a prenuptial agreement.
Live in Texas and wonder “is a prenup a good idea?” You can schedule a confidential case review with our founder attorney Justin Sisemore by calling our Fort Worth law office at (817) 336-4444 or by connecting with us online.