A pre-marital, prenuptial, or antenuptial agreement is a contract that predetermines financial and property obligations for a couple getting married. This type of agreement is only enforceable upon marriage.
Prenuptial agreements, or “prenups,” settle financial issues and create a sense of ease about one’s financial future. Some people may think they are offensive, unromantic, or rude, but in reality, it is simply a contract that helps you designate what happens to your financial assets in case of death or divorce. This type of agreement is one way of accumulating and disposing of property rights, even when that property is not tangible.
The point of a pre-marital agreement is to protect your interests and to prevent one person from making decisions about the property.
Why you should consider a prenuptial agreement:
Texas has a statute governing pre-marital agreements, and because Texas is a no-fault divorce state, you want to be sure you have as much control as possible over your assets in case of divorce.
There are many reasons to get a pre-marital agreement.
The type of property you have or hope to have may dictate how you divide assets in your pre-marital agreement. Separate property is property acquired through gift, devise (property disposed of in a will), or descent (inherited property). Additionally, some personal injury recovery and gifts made after marriage may be separate property. Community property is property acquired during marriage that belongs to both spouses and is subject to be split in divorce proceedings. A pre-marital agreement can also make community property separate property or to make separate property community property. Depending on the type of property, it may be beneficial to you to divide assets and discuss how property will be split in case of death or divorce, whether that property is separate or community property.
If you have child support obligations from a previous relationship, you can use a prenup to ensure that your assets are protected for your children, from your current or prior relationship, in the event of divorce or death.
Pre-marital agreements are effective upon marriage and may be enforced without consideration. Consideration is a bargained for agreement to do something, or, in other words, an agreement to do something in exchange for some value.
Both parties need to fully disclose assets and liabilities. Many agreements waive disclosures not mentioned in the document, but failing to disclose assets fully (this includes debts) could lead to a court finding the agreement invalid.
An infidelity clause is a provision that is entirely optional and provides for a spouse in the unfortunate event that the other spouse is unfaithful during the marriage. This clause can trigger divorce, or in some cases, a financial penalty. In Texas, adultery is still grounds for divorce, but its up to the court’s discretion in a divorce proceeding to divide property in a fair and reasonable manner, even if an infidelity provision is violated. Adding an infidelity clause does not create a legally binding obligation for a potential spouse to not stray outside the marriage, nor does it guarantee a party will receive a greater share in the property post-divorce.
A couple can modify or invalidate an initial pre-nuptial agreement by entering into a new agreement, in writing, that either alters or rescinds the initial agreement. Both parties must agree to the new agreement in writing.
Alternatively, if agreement of both spouses is not possible, you can get rid of a pre-marital agreement by asserting: