Should my Future Spouse and I Have a Prenuptial Agreement?

One party has significant assets

The main reason people get a prenuptial agreement is when one party has significant assets and wealth. If one spouse is entering into the marriage and may end up with a significantly improved lifestyle, the other may be concerned that they are being used for their money and may be worried about things such as spousal support and division of their assets upon divorce.

One party has more debt

Prenuptial agreements can stipulate that if one spouse brings debts into the marriage, they cannot use community money to pay off the debts. This includes business debts. Without this, debtors may be able to pursue the recovery of their spouses’ debts from the community assets.

Either of you owns a business or has business partners

If you have built a business by yourself, it makes sense to sign a prenuptial agreement that protects your business in the event that you divorce your spouse. A prenuptial agreement also protects any business partners as their share may be impacted by the divorce proceedings if you and your spouse get divorced.

Prenups give full autonomy to you about how your business will be managed in the future.

Benefits of a Prenuptial Agreement

Some people believe that creating their own prenuptial agreement is unromantic, or they may see a spouse’s attempt at creating a prenup as a sign that their spouse doesn’t have faith in their relationship.

No matter how much you love your spouse, sometimes marriages don’t work out, and so a prenup can be a smart decision that protects both of you. Some of the benefits include:

• Avoid future disputes.
• Ensuring children from previous relationships are provided for.
• Protecting family assets or businesses.
• Preparing for the possibility of either spouse’s death.
• Protection from the other’s debts.
• Avoiding legal costs to negotiate or litigate property division or spousal support.

When carried out correctly, a prenup provides peace of mind and comfort, knowing that your assets, children, and spouse are protected and that you have an agreement already in place in the event of divorce or death.

Prenuptial agreements are often stigmatized, but it is often a form of life-planning, similar to creating a will. While you hope for the best, preparing for future challenges can be a smart decision. It is not only a way of planning for divorce but also other unfortunate circumstances such as death.

Creating a prenuptial agreement is often the first step in creating other long-term plans, such as trusts or saving plans to provide for children and other relatives.

What Can a Prenuptial Agreement Include in Texas?

A prenup is a written contract that can seek to accomplish various things, including:

• Dictate whether either party will be required to pay spousal support and how it will be calculated.
• Determine whether any additional steps will be necessary for the prenup to be valid.
• Decide who has rights to control property acquired during the course of the marriage, including the rights to sell, buy and transfer ownership.
• Determine how the property will be divided in the event of a divorce.
• Name parities as beneficiaries on life insurance policies.
• Direct the parties to create a will or trust to ensure their assets are distributed in line with their wishes at death.
• Decide how the surviving spouse will be provided for if the other spouse suffers incapacitation or death.
• Any other personal rights and obligations during the marriage as long as no law or public policy are violated.

What Can’t a Prenuptial Agreement Include in Texas?

A prenup can’t include agreements regarding child custody or child support. Family law decisions post-divorce are made based on the best interests and rights of the child, which can’t be dictated by the parents. Child custody decisions are made by the Judge based on the circumstances at the time of divorce.

How to Ensure That a Prenuptial Agreement is Enforceable in Texas

A good prenuptial agreement benefits both parties and helps spouses to plan for their future. However, a prenuptial agreement must also be lawful if it is to be enforceable. The following factors are essential to ensuring a successful prenuptial agreement:

Full Disclosure

Both spouses need to fully disclose all of their financial matters unless one or both parties have waived their rights to financial disclosure. A waiver must be stated in writing and voluntary. Otherwise, both spouses need to provide statements that cover:

Informed Decisions

A prenuptial agreement must be free from coercion, duress, and overreaching in order to be valid. When you create a prenup with the help of an attorney, they can help ensure that both parties are properly informed and that the agreement is fully valid.

Timing is also important to ensure that a prenup is free from coercion, if it is created just before a wedding, then it may be presumed to have been created under duress. It is best to create a prenup long before the wedding date so that you both have the time to ensure that you are happy and comfortable with the agreed upon terms.

Independent Advice

Seeking independent advice from a family law attorney is essential to ensuring your prenup is valid. While this is not a legal requirement, it will prevent any suggestion that either party was not fully informed, which would make the prenup invalid.

When you have the assistance of an attorney, you will have greater assurance that your prenup will hold up in court. Not only will they ensure everyone has properly considered the terms of the prenup, they will also ensure that it follows legal requirements.

For example, if any of the requirements of the prenup create too much hardship for one spouse, then it will not be enforceable. Your family law attorney will make sure that each spouse’s needs are met in the prenup.