A premarital agreement or “prenup” is an agreement between prospective spouses to alter their marital property rights without court involvement. Chapter four of the Texas Family Code governs these types of agreements.  Parties can agree to the division of household responsibilities, payment of support and living expenses, sharing of child-rearing responsibilities, religious upbringing of children, procedures for conflict resolution, and the disposition of property in the event the relationship ends.  Almost anything that the parties think of can be included so long as it does not (1) violate public policy or a criminal statute, (2) adversely affect a child’s right to support, or (3) defraud a creditor.  Premarital agreements are used to cover both current and future assets.

Who should get a premarital agreement?

Many people believe that premarital agreements are just for the wealthy.  That is not necessarily the case.  Any couple who wishes to pass separate property to children from a prior marriage, avoid conflict in the event of divorce, protect their spouses from each other’s debts, or clarify financial responsibilities may want to consider a prenup.  If a couple chooses to make a prenup, the best practice is to require separate legal representation for each party.  Separate representation helps avoid potential arguments that one party had unequal bargaining power over the other.

What are the requirements for a binding premarital agreement?

In order to be enforceable, a premarital agreement must be in writing.  The parties must fully disclose all property and financial obligations.  The agreement must be signed by both parties before they marry, and it must be sworn to so that it can be recorded in the court records where relevant property is located.  Neither party is required to pay for a premarital agreement.  The only consideration required is the parties’ mutual promises to marry; however, a premarital agreement must be signed voluntarily.  It will not be effective if one party is under duress when they sign.

When does a premarital agreement become effective?

A premarital agreement becomes effective on the date of marriage even though it must be signed before the marriage.  There is no specific requirement on what type of marriage ceremony the couple must have in order to make the agreement effective.

What should I do if my partner wants a prenup?

The first thing you should do is have a conversation with your partner to understand what his or her goals are in asking for a premarital agreement.  Keep in mind that the decision on whether or not to sign a premarital agreement is a personal decision and does not reflect on the level of love or trust in your relationship.  You should look for an attorney to review the premarital agreement independent from your partner’s attorney.  Don’t be afraid to ask questions and importantly, communication with your partner is key.

What if I don’t sign a premarital agreement?

If a couple chooses not to sign a premarital agreement, Texas law governs the division of property and debts in the event of a Texas divorce.  Texas is a community property state, which means that each party will own 50% of all property accumulated during the marriage (including salary, real property, retirement, and personal property).  Any property that the party accumulated prior to the marriage remains that party’s separate property, but the burden is on the spouse claiming separate property to prove it.  A court will divide the community property if the parties cannot agree.

Blog post by Samantha Mori