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 in Texas 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
Child custody and support can’t be part of a prenuptial agreement in Texas 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.
Benefits of a Prenuptial Agreement
Many people believe that getting a prenuptial agreement is unromantic or is even a presumption that the marriage is going to fail or that the other spouse is only getting married for the economic benefits. However, this is not the case; a prenuptial agreement can be a smart part of your plan for your life with your spouse that protects both of you.
To be sure, some of the most obvious benefits of a prenuptial agreement are:
- Protection of each spouse’s property;
- Avoidance of high legal costs in the future, specifically as they pertain to reaching a property division or spousal support settlement;
- Protection from the other party’s debts;
- Avoidance of future disputes – if parties divorce or separate, how property should be divided has already been handled;
- Providing for children and loved ones from this marriage or a previous one;
- Protecting a family business or family assets; and
- Providing peace of mind – it can be comforting to know that your assets and best interests are protected, that your spouse is protected, and that you are in agreement about what should happen should the worst occur.
There are few downsides to a prenuptial agreement, especially if either spouse is entering the marriage as a high-asset individual or high-income earner. Typically, the only disadvantage to a prenuptial agreement is the fact that these agreements are often considered to be unromantic.
Key Elements of a Prenuptial Agreement
A good prenuptial agreement that provides for both parties takes more than just sitting down and discussing your finances and desires for the future. When preparing your prenuptial agreement, make sure these key elements are in place:
For a prenuptial agreement to be honored, its timing must be free from
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.
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.
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.
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.
The above elements – timing, disclosure, and independent counsel – speak more to what makes a prenuptial agreement valid or legal rather than what will make for a strong prenuptial agreement that provides full protection; this is based on content. In other words, you want to make sure that your prenuptial agreement addresses
- all of your property and other financial matters,
- how each of your beneficiaries will be provided for,
- whether or not there will be a spousal maintenance award (and if so, for how much) in the event of separation or divorce,
- and how matters will be handled in the event that the marriage is terminated as a result of divorce, or how things will be handled if one spouse is incapacitated or suffers death.
While these are difficult things for spouses-to-be to think about, it is critical that they are discussed and decisions regarding these topics are included in a prenuptial agreement.
What Happens When a Prenuptial Agreement Isn’t Created Correctly?
Creating a prenuptial agreement in accordance with the four elements above in mind is critical. If a prenuptial agreement is not created in a legal or valid manner, or if it contains provisions that are unfair and unconscionable, it may not hold up in court in the event that you are getting a divorce from your spouse.
To be sure, your prenuptial agreement may be declared invalid if:
- It is not in writing;
- It is not signed by both you and your spouse;
- The agreement was signed as a result of coercion, pressure, or duress;
- Your spouse did not have a reasonable amount of time to read the agreement prior to being asked to sign it;
- The agreement was created with false information – either you or your spouse did not fully disclose everything;
- Either you or your spouse did not have independent legal representation at the time the agreement was drafted and signed;
- The agreement contains illegal or invalid provisions, such as child support obligations or requirements for one spouse to do something that is against the law; or
- The agreement is so unfair as to be declared unconscionable because it would result in one spouse facing severe financial hardship if the agreement were enacted.
To avoid the above missteps and ensure that you have a sound prenuptial agreement that will be valid and enforceable at a later date, working with an attorney is a must.
Get Help with Your Prenuptial Agreement
Creating a prenuptial agreement is a big decision and should be one that you and your soon-to-be-spouse make together. In many cases, working with a marriage counselor or other trusted person prior to marriage who can guide you through how to resolve conflicts and make big decisions as a couple is recommended, and can be useful in navigating the creation of a prenuptial agreement.
If you and your partner do decide that creating a prenuptial agreement is the right choice, you want to hire a talented family law attorney with experience crafting prenuptial agreements. Both of you should be represented by a lawyer.
Call the Law Office of Ben Carrasco PLLC Today
Make sure you cover all your bases by choosing a qualified family lawyer for your prenuptial agreement to help you make the smartest decisions. At the Law Office of Bed Carrasco PLLC, our dedicated family law attorney has the experience and qualifications that you’re looking for and is passionate about protecting your best interests.
In addition to helping you and your spouse form a prenuptial agreement, Attorney Ben Carrasco has also guided couples through creating postnuptial agreements, and divorce and separation including property division, spousal maintenance, and child support and child custody matters. Call Ben today at (512) 320-9126 or request a consultation online!