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Marital agreements are contracts in which the parties determine how they will treat their property and responsibilities during a marriage and how the property will be divided if the marriage ends in a divorce.
Prenuptial (or premarital) agreements are contracts made before marriage by persons who are contemplating marriage but want to establish in advance how certain issues will be treated. Such agreements would be appropriate for someone who wants to protect a child from a previous marriage or who has substantial assets and wants to protect those assets in the event of a divorce.
Postnuptial (or post-marital) agreements are contracts made during a marriage between spouses who want to specify or change how they have been treating their property and how the property will be divided in the event of a divorce or separation. For example, spouses can decide to change some community property to separate property or vice versa.
The Texas Family Code says that a prenuptial agreement may cover the following items:
Prenuptial and post-nuptial agreements cannot affect a party’s right to receive child support.
Yes, a marital agreement must be in writing and signed by both parties. An oral agreement affecting the marital relationship is not enforceable.
If a party to a marital agreement conceals some of his or her property interests and the other party is induced to sign the agreement based on that lack of information, then the contract could later be declared unenforceable because of fraud or overreaching.
A premarital agreement doesn’t become effective until the parties are married.
It cannot be emphasized strongly enough that each party to a marital agreement should have his and her own independent counsel to obtain advice and assistance in drafting the agreement.
If a marital agreement affects real property, it should be acknowledged and notarized and then recorded in the county where the property is located.
Each situation is unique and, other than some common provisions that are contained in most contracts, your particular situation and that of your future spouse should govern the terms of a marital agreement.
First, you should do an inventory of all of your property, sources of income and other assets that you may want to protect. You should also gather personal information about yourself, your current or potential spouse and any children that either of you may have from a previous marriage or from the current marriage in the case of a post-nuptial agreement.
Second, get the advice of an attorney of your own choosing. If your assets are substantial and if you are concerned about tax implications, you should also seek the advice of a CPA or other qualified tax advisor.
McCormick and Boyd Law Firm takes special care in drafting and presenting prenuptial agreements, not only because of their importance for your property, but also because the marriage can start out “on the wrong foot” or not happen at all, if the wrong approach is taken.