Nobody wants to go into a marriage thinking about divorce, but unfortunately, it is a fact of life for an estimated 41-50% of couples in the United States. That number is even higher for second and third marriages; they clock in at 60-67% and 73-74%, respectively.
Divorce is not only emotionally painful. But, it can also have a devastating effect on a person’s quality of life if they don’t protect themselves legally. That’s where a prenuptial agreement comes into play.
What Is a Prenuptial Agreement?
A prenuptial agreement, or a prenup, is a legally binding document that is finalized prior to marriage. In simple terms, it is a marital contract between the parties executing it. It details what property belongs to each party upon entering the marriage and who will have management rights over that property. If done properly, it can also assist in determining how property and debts will be divided should a divorce occur. It can safeguard one spouse against the other’s outstanding debts they accumulated before getting married. A prenup will usually only include the property and debt a spouse has prior to marriage, since anything gained during the marriage is typically considered community property.
Reasons to Get a Prenup in Texas
You may think that prenups are only for the wealthy, but the truth is, they can protect anyone at any income level.
In Texas, a prenup can be utilized for a variety of reasons. Some couples may want to enter into a prenup to preserve family fortunes for children from an earlier marriage. Some use them to predetermine the parties’ rights and duties during marriage, including childcare, housework, career sacrifices, and managerial responsibilities related to family finances. They can be used to ensure a certain religious upbringing of a child. If you have a family business or some other type of property you want to be given to your blood relatives, then you can include this as well.
If one of the spouses plans on primarily raising the children, and won’t be earning an income, or will be earning a lower income, then spousal support, or alimony, can be outlined in the prenup. You can also incorporate how you will deal with disputes if you’re divorcing.
While a prenup in Texas can address the various issues mentioned, there are some things that are prohibited and therefore cannot be included in a prenup. Prenups cannot be used to adversely affect child support obligations, defraud creditors, waive a prospective spouse’s benefits in an Employee Retirement Income Security Act (ERISA) retirement plan, and cannot violate public policy or a statute imposing a criminal penalty.
In the event parties wish to readdress provisions contained in their prenup, a postnuptial agreement can be executed evidencing the parties’ new agreements.
Getting a Prenup in Texas
The Texas Family Code regulates what is a valid and invalid prenup. For instance, the prenup needs to be in writing; oral prenups do not count in a court of law. Both parties, prior to a marriage, must sign them voluntarily.
A prenup needs to be properly executed to be enforceable. If not done properly, you can run the risk that the prenup will invalidated in Texas. For example, if one spouse was not given adequate and correct information about their spouse’s property and debts. If the prenup was not signed voluntarily. There may be a situation arise where the prenup is determined to be unconscionable. But if a spouse signed a waiver of disclosure stating that they did not need to know all about the other spouse’s properties and debts, then the prenup could still be valid. Enforceability is something to be aware of when executing a prenup and needs to be evaluated on a case by case basis.
If you do not have a prenup, or your prenup is invalidated for some reason, then any property or debt you acquired during your marriage could be community property.
Why Prenups Strengthen a Marriage
While prenups were not as common in the past, many younger couples today are choosing to use them. No matter how old you are or what number marriage you’re on, if you’re getting married in Texas, it makes sense to have a prenup.
You and your spouse will feel protected in case your marriage doesn’t work out. Also, it’s better to hash out details when you are on each other’s side and want to ensure you both have a good life following divorce. You don’t want to be forced to make these decisions when you are angry, frustrated or feeling contentious toward your spouse at the end of your marriage.
A healthy way to look at a prenup is to compare it to insurance. While you will likely never need to use it, it’s there for you just in case the worst scenario happens. You want to be protected and not have to go through a rigorous and exhausting divorce process when you’re already going to be emotionally wounded. You’re doing a favor to your future self, as well as to your spouse. Your divorce proceedings will go more quickly and smoothly with a prenup in place.
Tips for Getting a Prenup in Texas
When deciding on whether or not to get a prenup in Texas, discuss the issue early with your spouse-to-be. Don’t spring it on them a month before your wedding or catch them off guard. It’s best to talk about it when you’re still dating. If your spouse-to-be is offended or against the idea, you may want to consider hiring a couple’s therapist who can help you work through any issues and feelings you both have about the agreement.
It’s also a good idea to hire separate lawyers so you both feel equally represented and that you’re receiving a fair deal. You will need lawyers to write and examine your prenup to ensure you don’t have any vague language in it, and also to guarantee that it is indeed legally binding.
Finding a Lawyer for Your Prenup
If you and your spouse-to-be have decided that you do want to pursue a prenup, make sure you turn to the experts to help you create a thorough and legal document.
The experienced Houston prenup attorneys at Boudreaux Hunter & Associates, LLC are available to consult with you if you are considering a prenup before marriage. We can provide valuable insight on prenups and our initial consultation is always at no charge to you. You can learn more about our prenuptial agreements by calling the family law attorneys at Boudreaux | Hunter & Associates, LLC at (713) 333-4430.