Few couples want to consider the possibility of their relationship ending when preparing for marriage. Weddings usually center on love, trust, and optimism for a future together. But amid the excitement of planning for that future, it’s also important to consider protecting your financial interests should the relationship end unexpectedly. One tool that more couples are turning to is a prenuptial agreement.
What is a Prenuptial Agreement?
A prenuptial agreement (a “prenup”) is a legally binding contract between two people before marriage. Its purpose is to outline how the couple’s assets, debts, and financial matters will be handled if the marriage ends in divorce or death. A prenup can also address other financial arrangements during the marriage, such as how property and income are managed or divided.
Why Do You Need a Prenuptial Agreement in Texas?
Texas is a community property state, which means that, without a prenuptial agreement, the law assumes that most property and income acquired during the marriage belong equally to both spouses. In a divorce, this property will generally be divided 50/50 unless specific agreements are in place to handle it differently.
1. Protection of Premarital Assets
2. Business Protection
3. Clarification of Debt Responsibility
4. Protection of Inheritances
5. Avoid Lengthy Court Battles
Divorce proceedings can be lengthy, emotionally draining, and expensive. A prenuptial agreement can help streamline the process, reducing the likelihood of prolonged legal disputes over financial matters. The agreement provides a clear plan for asset division, saving both parties time and money.
How to Get a Prenuptial Agreement in Texas
Step 1: Start with an Open and Honest Conversation
Some points to consider discussing include:
- Your financial situations
- Any pre-existing assets or debts
- Expectations for how property and finances will be managed during the marriage
- Your goals for the prenup, including protecting assets, clarifying responsibilities, or avoiding legal disputes in the future
Step 2: Hire Separate Attorneys
In Texas, both parties are strongly encouraged to have their attorneys when drafting a prenuptial agreement. This ensures that each party’s interests are protected and helps avoid conflicts of interest. Each attorney will represent their client and ensure the deal is fair, reasonable, and legally binding.
Step 3: Full Financial Disclosure
Full financial disclosure is one of the most important aspects of a prenuptial agreement. While drafting the prenup, both parties are legally required to disclose all assets, debts, income, and liabilities. This transparency ensures that both parties are fully informed about each other’s financial situation.
Please disclose all relevant financial information to ensure the agreement is valid. Therefore, it’s crucial to be honest about your financial standing, including:
- Real estate holdings
- Bank accounts and savings
- Retirement accounts
- Investments
- Business interests
- Outstanding debts, including credit cards, student loans, or mortgages
Step 4: Drafting the Agreement
After financial disclosure, the next step is to draft the prenuptial agreement. The specific terms of the contract will depend on your unique situation, but some common issues addressed in a prenup include:
- Property Division: How marital property will be divided in the event of divorce and how separate property will be maintained.
- Debt Responsibility: Which spouse will be responsible for pre-existing and future debts?
- Spousal Support (Alimony): Whether one spouse will receive financial support after divorce and, if so, how much and for how long.
- Business Ownership: Protection of business assets and income for a spouse who owns a business.
- Inheritance: Whether future inheritances will remain separate property.
Step 5: Review and Negotiation
Once the first draft of the prenuptial agreement is completed, both parties and their attorneys will review it to ensure it accurately reflects the agreed-upon terms. If either party has concerns or wants changes made, this is the time to negotiate those terms.
Step 6: Signing and Notarizing the Agreement
After both parties agree to the terms, the prenuptial agreement must be signed and notarized. This step is critical for ensuring the document is legally binding. Both parties must sign the agreement voluntarily, without any pressure or coercion.
Is a Prenuptial Agreement Enforceable in Texas?
For a prenuptial agreement to be enforceable in Texas, it must meet the following criteria:
- Voluntary Consent: Both parties must sign the agreement voluntarily, without pressure, duress, or coercion.
- Full Financial Disclosure: Both parties must fully disclose their financial situation, including assets, debts, and income.
- Fairness: The agreement must have been fair and reasonable when created. The court may refuse to enforce the contract if one party is at a severe financial disadvantage due to the terms.
- Proper Execution: The prenup must be in writing, signed by both parties and notarized to be legally binding.
What Can You Include in a Prenuptial Agreement in Texas?
What You Can Include:
- Division of Property: How marital property will be divided in divorce and how separate property will be handled.
- Debt Responsibility: How will premarital and marital debts be managed, and which spouse will be responsible for certain debts?
- Spousal Support (Alimony) refers to whether one spouse will receive alimony and payment amount and duration.
- Business Assets: Protection for business ownership, profits, and investments.
- Inheritance: How inheritances will be treated, ensuring that future inheritances remain separate property.
What You Cannot Include:
- Child Custody and Support: Texas law does not allow prenuptial agreements to determine child custody or child support. These issues must be resolved in court based on the child’s best interests.
- Unreasonable or Illegal Provisions: Any terms that violate Texas law or are deemed unconscionable (extremely unfair) will not be enforceable. This includes provisions that put one spouse at a severe financial disadvantage.
How Much Does It Cost to Get a Prenuptial Agreement in Texas?
- Complexity of Assets: If you or your partner own significant assets, including businesses, real estate, or investments, drafting the prenup may require additional time and legal expertise.
- Negotiation Process: If the prenup terms require extensive negotiation between both parties and their attorneys, this can increase legal fees.
- Attorneys’ Fees: Each party will need their attorney, and attorneys typically charge by the hour for their services. The cost will depend on the attorney’s experience and the complexity of the agreement.
Can a Prenuptial Agreement Be Modified or Revoked?
Modification
If you want to change the terms of your prenuptial agreement, you and your spouse can create an amended agreement in writing. Both parties must sign the amended agreement, which should be notarized to ensure its enforceability.
Revocation
If you and your spouse wish to cancel the prenuptial agreement, you can do so by drafting a written revocation agreement. Both parties must agree to the revocation, and it should be signed and notarized to be legally binding.
Common Questions About Getting a Prenuptial Agreement in Texas
- Is a prenuptial agreement necessary if we don’t have many assets? A prenuptial agreement can still provide benefits even if you don’t have significant assets going into the marriage. It can help clarify how debts will be managed, establish financial expectations during the marriage, and prevent future disputes. Additionally, a prenup can protect future earnings and assets that may be acquired during the marriage.
- Can a prenuptial agreement be enforced if we move to another state? Generally, yes. Prenuptial agreements are recognized across state lines as long as they were created according to the state’s laws where the couple resided when they married. However, it’s a good idea to consult an attorney in your new state to ensure the agreement remains enforceable.
- How long before the wedding should we get a prenuptial agreement? It’s best to start drafting a prenuptial agreement several months before the wedding. This gives both parties enough time to negotiate the terms, consult with attorneys, and ensure the agreement is appropriately signed and notarized. Waiting until the last minute can lead to claims of duress, which could jeopardize the enforceability of the prenup.
- Can a prenuptial agreement address future changes in circumstances? Yes, prenuptial agreements can include provisions for future financial changes, such as children’s birth, career changes, or significant income increases. However, it’s also possible to modify the prenup later on to reflect any changes in your circumstances.
- What happens if we don’t have a prenuptial agreement and we get divorced? If you don’t have a prenuptial agreement, Texas community property laws will govern how your assets are divided in the event of a divorce. This typically means that any property acquired during the marriage will be divided equally between both parties. A prenuptial agreement allows you to take control of these decisions and avoid the standard division of assets.
Final Thoughts: Secure Your Future with a Prenuptial Agreement
At The Tess House Law Firm, we understand the importance of creating a fair and enforceable prenuptial agreement that meets your unique needs. Our experienced family law attorneys will work with you to draft a contract that protects your assets, clarifies expectations, and ensures peace of mind as you embark on this new chapter of your life.
