Why create a Post-Nup in Texas
In Texas, if you are married there are laws that determine your interests, rights and potential liabilities in property acquired and income earned during the marriage. Spouses owe certain fiduciary responsibilities to each other, and can be responsible for debts incurred during the marriage for “necessaries” (e.g., living expenses, health care costs, etc.). Before getting married, couples can decide to create their own “rules” through a premarital agreement to govern how property will be held, what happens to the property when the marriage ends through death or divorce, and who is responsible for what debts. Similarly, after marriage, partners in the marriage may elect to change the default “rules” by entering into a post-nuptial agreement (also known as a “marital property agreement”).
To be valid, a postnuptial agreement must fulfill certain requirements mandated by state law, which is why consulting with an attorney experienced in crafting postnuptial agreements is crucial. If you are not careful to follow the rules for marital property agreements, you could end up creating more conflicts and turmoil with an unenforceable agreement in the future.
But, how do you go about creating a valid post-nup? Any good attorney will highly advise against couples drafting and signing post-nups through ‘canned’ online forms or DIY methods. You might think you are saving money in the short run; however, battles over the enforceability of a marital property agreement can get expensive quickly, and have disastrous results long-term. Knowledge of the law and ins and outs of the potential pitfalls is vital to protecting your interests and your future, and that’s where the need for an excellent attorney familiar with the law is beneficial.
Therefore it’s wiser to consult an experienced family attorney who can take steps to ensure that your postnuptial agreement is valid, serves your best interests, and represents the intentions that spurred the desire for the agreement in the first place.
What makes a Post-Nup Enforceable in Texas?
Marital property agreements are presumed to be enforceable in Texas. However, they can be unenforceable if:
- The agreement was not entered into voluntarily;
- The parties did not make a full disclosure of assets and liabilities before entering into the agreement;
- The parties did not sign a waiver of further financial disclosure before signing the agreement; and
- The agreement was unconscionable when it was signed.
What can a post-nup cover?
Creating a postnuptial agreement may not come across as a particularly romantic gesture for your marriage. However, the process of collaborating to establish a postnuptial agreement can actually facilitate open communication and teamwork within your relationship. It’s a significant undertaking that commands mutual effort from both parties. Postnuptial agreements are not necessarily an indication that couples are contemplating divorce.
Some couples decide to get post-nups at the height of their marriage simply because they want to document their agreements and wishes as to property, as well as their plans for their estates. Others decide to get a post-nup in the aftermath of a big financial event, like a spouse receiving an inheritance. Others may decide to get a post-nup in contemplation of high risk financial event.
Post-nups can spell out how marital property will be divided in order to preempt potential future conflict about assets and debt and division of property in the event of divorce or in the event of death. Post-nups also often address spousal support, rights to occupy the marital residence, and debt division in the event of death or divorce.
Post-nups can also address how finances are managed, and whether the couple will use separate and/or joint accounts, and how household expenses will be paid. It can also clarify and identify the separate property brought into the marriage and how community property will be accrued and treated.
Both pre-nups and post-nups are also used to address business assets and liabilities. They can be formulated if both spouses, or just one spouse, are about to form a business or already owns one or more. Because businesses can be risky ventures in some cases, entering into a post-nup before assuming liability can be smart to preserve and protect assets available for the other spouse. However, if this is the purpose of the post-nup, it’s important that the post-nup be done before the debt is assumed.
Reach Out to Us for Guidance
A postnuptial agreement can provide peace of mind and clarity in a marriage. It is an effective way to protect your assets, define your financial responsibilities, and ensure that your wishes are respected in case of a divorce.
If you are considering a post-nuptial agreement or have questions about how it could benefit you, we encourage you to contact our family law attorneys. Our team is here to guide you through the process and provide the legal expertise you need to make informed decisions. Reach out to us today to schedule a consultation.