picture of a prenuptial agreement

Nobody wants to think about the possibility of a divorce before they’re even officially married. However, as the average age of marriage continues to rise, more and more couples are beginning their married lives with more assets than ever before. And since the population of divorced adults has risen as well, it’s not a bad idea to prepare a prenuptial agreement before saying “I do”.

Should You Get a Prenuptial Agreement?

Prenups certainly aren’t for everyone, but you may want to consider one if you or your spouse is entering the marriage with either significant assets or major debt. It’s also worth considering if you or your spouse is remarrying or have children, or if one spouse is much wealthier than the other.

These common reasons for prenup agreements don’t apply to everyone, however, and you may still wish to enter a prenup for other reasons.

What Does a Prenuptial Agreement in Texas Cover?

A prenuptial agreement in Texas can determine who has the rights to manage or control property, including its buying, selling, transfer, and more. It can also include the rights to alimony, the making of a will, how property will be divided in a divorce, and the rights to the death benefit of a life insurance policy.

Child Custody, Support, and Alimony

In Texas, child custody and support can’t be part of a prenuptial agreement because the rights of child support belong to the child, and child custody is determined based on the circumstances at the time of the divorce.

Stipulations concerning alimony can, however, be set forth in a prenuptial agreement.

Key Elements of a Prenuptial Agreement

When preparing your prenuptial agreement, make sure these key elements are in place:

Timing

For a prenuptial agreement to be honored, its timing must be free from

  1. Duress
  2. Overreaching
  3. Coercion

This means that a prenuptial agreement presented shortly before a wedding may not be valid because it could create a presumption of overreaching or coercion. This is because a postponement at that point could cause emotional distress, embarrassment, or even hardship.

If you’re going to use a prenuptial agreement, present it long before the wedding date – no less than 60 days before. Not only is this a safer legal move, it will also give you and your fiancé time to ensure you’re comfortable with the arrangement – and comfortable with the marriage.

Disclosure

Both parties need to present complete financial statements that cover:

  • Income tax returns
  • Bank accounts
  • Real estate information
  • Mortgage information
  • Security accounts
  • Lists of automobiles and other vehicles
  • Value of retirement benefits
  • Outstanding loans

If you or your spouse own a business, you need to disclose information about the business, including its name, the nature of the business, the value of your interest in it, and the valuation method you use to calculate its value.

Independent Counsel

Obtaining independent counsel is crucial to the validity of your prenuptial agreement. While no state requires independent counsel for the agreement to be valid, a lack of independent counsel may later suggest that the contract was entered involuntarily.

In addition, using independent counsel before the prenuptial agreement is complete provides a greater assurance that your agreement will hold up in the event of divorce.

Fairness

A prenuptial agreement must be deemed fair to be executed. If the provisions leave a spouse at a drastically reduced standard of living, or unable to meet reasonable needs, the agreement will not be enforced. Likewise, if the court finds any of the provisions to be unconscionable, they will not be enforced.

When drafting your prenuptial agreement, make sure it meets the reasonable needs of the dependent spouse in the marriage. You can allocate assets or alimony based on the length of the marriage, or you can specify a time after which the agreement or certain provisions terminate.

Get Help with Your Prenuptial Agreement

Make sure you cover all your bases by choosing a qualified lawyer for your prenuptial agreement to help you make the smartest decisions. C

Need Help With a Prenuptial Agreement?

Ben Carrasco is an experienced, dedicated family law attorney who can help prepare a successful prenuptial agreement for you. Call Ben today at (512) 320-9126 or request a consultation online!

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