Thursday, December 05, 2019
Prenuptial Agreements in Texas - A Brief Introduction
The sad reality of the current divorce rate in America indicates that almost 50% of couples will enter a marriage that has an expiration date. Although most happy couples don’t go into marriage anticipating a divorce, it has become increasingly important to consider a potential split as a likely possibility. As such, the importance of a prenuptial agreement for a couple headed into marriage is warranted, now more than ever.
What is a Prenuptial Agreement?
A prenuptial agreement, or prenup, is an agreement between a couple, before marriage, that generally establishes the rights and responsibilities of each party and controls the division of property. According to Texas law, in order for a prenup to be enforceable, the agreement
(a) must be in writing;
(b) must be voluntarily signed by both parties prior to the marriage and in contemplation of marriage;
(c) must not be unconscionable when written; and
(d) must be signed after both parties have knowledge of each other’s finances.
A prenup is enforceable without consideration and can cover a range of issues from outlining the rights and obligations of each spouse concerning property -- to a spouse’s right to receive alimony. An exhaustive list with respect to what prenups may cover can be found in Section 4.003 of the Texas Family Code. A prenup can be amended or revoked after marriage only by a written agreement between the parties. Similar to the prenup itself, an amended agreement or a revocation of a prenup is enforceable without consideration.
To avoid having a prenup declared legally unenforceable, couples should adhere to all of the following:
- Both parties must sign the prenup voluntarily with knowledge of the other spouse’s financial obligations and property owned. A prenup that is entered into wherein one party lacks a full understanding of the property and financial obligations of the other party, without having waived the right to the disclosure in writing, may result in a void prenuptial agreement if that same party didn’t have, and reasonably couldn’t have had, knowledge of the other party’s obligations.
- The prenup must not be unconscionable or one sided.
- Prenups cannot include designations for child support or child custody.
- Both parties should preferably have independent attorneys representing each parties’ respective interest.
The decision to split from a loved one is hard enough. During such time, prenuptial agreements act as insurance policies, protecting each party’s interests at their times of need while also ensuring that the dissolution of a marriage occurs in a more simplified, expedited, and stress-free way.
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