Prenuptial Agreement

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When people hear the word “prenup” they automatically assume the potential spouses are wealthy. While it is true that many prenuptial agreements cover wealthy couples, even non-wealthy couples can benefit from a well-crafted prenuptial agreement to protect their assets.

What is a prenuptial agreement?

A prenuptial agreement is an agreement made between a couple in contemplation of marriage which will become effective upon marriage. Prenuptial agreements tend to have a stigma with couples who have less wealth. The idea of a prenuptial agreement tends to skew towards contemplation of divorce versus contemplation of marriage. It is important to understand that a prenuptial agreement sets out what is separate property and what is community property.

What is included in a prenuptial agreement?

In Texas, the following terms can be included in a prenuptial agreement:

  1. Assets – A prenuptial agreement will clarify how assets are divided. In some instances, one person may have significantly more assets than the other person and clarification of the division of assets will ease any confusion in the future.
  1. Debt- A prenuptial agreement can establish that one party is not responsible for the debt of the other party.
  1. Businesses- A prenuptial agreement can protect established businesses and business partners in the event a divorce takes place.
  1. Separate property – A prenuptial agreement will clarify separate property such as existing houses, cars, and retirement plans to name a few.
  1. Spousal Maintenance – A prenuptial agreement can even determine how much spousal maintenance will be given to the other spouse in the event of a divorce.

What about potential child issues?

The following will not be honored by the Court if placed in a prenuptial agreement:

  1. Child custody and access/possession
  1. Child -rearing (school choices, religion, eating choices etc.)
  1. Child support

The Court will make the determination on these issues. Keep in mind the parties can still come to an agreement while a divorce is in action.

How do I ensure a prenuptial agreement is enforceable?

  1. Not unfair – A prenuptial agreement that grossly distributes assets in favor of one person may not be enforceable. For Example, if a divorce occurs and one person does not have the financial resources to survive then the prenuptial agreement may not be enforceable.
  1. Contemplated Changes – If there have been substantial unforeseen changes not contemplated in the prenuptial agreement after the marriage, it may not be enforceable.
  1. Separate Attorneys – Ensure both people are represented by a family lawyer Arlington, Texas offers.
  1. Signatures – The agreement is signed and dated by both parties.
  1. Understanding of rights – Prior to signing the agreement, the parties understand their rights under the law.
  1. Disclosure – Full disclosure of assets and income will stop any allegation that someone was hiding assets.
  1. No coercion – Only voluntary signing of the prenuptial agreement will allow the prenuptial agreement to be enforceable. For instance, signing a prenuptial agreement the day before the wedding may be looked at as coercion versus signing a prenuptial agreement weeks or even months prior to the wedding.



Thank you to our friends and contributors at Brandy Austin Law Firm for their insight into family law and prenuptial agreements.