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Prenuptial and Postnuptial Agreements

Prenuptial and Postnuptial Agreements in Texas

The state of Texas is a community property state. In a community property state, most property, if not all, that is acquired during the marriage is jointly owned by both spouses.  As community property, there is an equal 50/50 division of property upon dissolution of a marriage although there are certain exclusions for gifts and inheritances. It is possible to divide the property other than 50/50, but to do so will require either a prenuptial or post-nuptial agreement defining what the division of property will be.

What is a Prenuptial Agreement?

A prenuptial agreement can be defined as a legal contract that is entered into by two people prior to marriage. A prenuptial agreement is a contract that is entered into with the intention of protecting the couple’s individual property rights or to delegate responsibility for debts owed or acquired prior to entering into the marriage. There are no rules for a prenuptial agreement other than the agreement must be voluntary and fair. And the couple can choose to designate how the property and debts are divided. A typical prenuptial agreement will cover the following information:

  • An accounting of all of the assets and debts of each spouse at the time of the marriage;
  • An agreement that no community property will be created during the marriage;
  • An agreement that each spouse will own all income and assets that he or she acquires during the marriage; and
  • In the event of a divorce, there will be no community property to divide.

Postnuptial Agreements

A postnuptial agreement is similar to a prenuptial agreement except it is intended to partition, or segregate, the assets and debts that are acquired after the marriage ceremony. It is often referred to as a partition since it partitions the assets and debts into two separate and distinct estates for whatever purpose the couple may want. The agreement will provide for the division of the assets and debts that each spouse will receive upon death or dissolution of the marriage. Just like prenuptial agreement, there are no set formulas for the division of the marital property, and the couple is free to enter into any terms they choose. There is one criterion for legitimacy and it is the same as with a prenuptial agreement – the agreement must be voluntary and fair.

Voluntary and Fair

Entering a prenuptial or a postnuptial agreement is a serious legal obligation that should be undertaken with great care. One of these agreements can have great consequences and should never be entered into without speaking with a qualified attorney first.

Both the prenuptial and the postnuptial agreements are legally enforceable under Texas law. There are no rules or formulas for protecting or dividing the property other than the terms of the agreement must be “voluntary and fair”. An agreement that meets the threshold of “voluntary and fair” must include at least one of the following criteria to be legally enforceable:

  • Each party must be given a fair and reasonable disclosure of the other party’s property; or
  • Each part to the agreement must sign a waiver of such disclosure; or
  • Each party must have had adequate knowledge of the property or financial obligations of the other party to the agreement

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