FAMILY ISSUES | Marital Agreements (Prenuptial Agreements and Postnuptial Agreements)

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.

What does the law allow a prenuptial agreement to deal with?

The Texas Family Code says that a prenuptial agreement may cover the following items:

  1. The modification or elimination of spousal support
  2. The making of a will, trust, or other arrangement to carry out the provisions of the agreement
  3. Ownership rights in and disposition of the death benefits from a life insurance policy
  4. The choice of law governing the construction of the agreement
  5. Any other matter, including the parties’ personal rights and obligations, as long as it doesn’t violate public policy or a statute imposing a criminal penalty.

What can’t a marital agreement affect?

Prenuptial and post-nuptial agreements cannot affect a party’s right to receive child support.

Does a marital contract have to be written?

Yes, a marital agreement must be in writing and signed by both parties. An oral agreement affecting the marital relationship is not enforceable.

What if one party doesn’t disclose all of his or her separate property interests when the agreement is made?

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.

When does a premarital agreement take effect?

A premarital agreement doesn’t become effective until the parties are married.

Can the parties use the same lawyer to make their agreement?

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.

Does the agreement have to be filed or recorded?

If a marital agreement affects real property, it should be acknowledged and notarized and then recorded in the county where the property is located.

What should I do if I am contemplating a marital agreement?

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.