Pre-Nuptial Prisons

Pre-nuptial agreements (often called “pre-nups”) have likely been controversial since their inception.  When many people think about pre-nuptial agreements, they envision a document that essentially prepares a couple to divorce before they get married. The picture is often painted that a pre-nuptial agreement is a backup plan, which prompts a discussion about love, and whether those that are truly in love should ever plan for divorce. Pre-nuptial agreements, however, aren’t necessarily plans for “when we divorce”, but helps set things in order in the event of a divorce before possible animosity sets in. Yet, many people have questions concerning pre-nups. What if you change your mind after you get married? What if you later realize that something is unfair or was not initially disclosed to you? What if you did not get a pre-nup before you got married, but desire something similar now that you are married? The answers to these questions and more are below.

Pre-nuptial agreements are discussed in chapter four of the Texas Family Code (TFC). They are officially defined as agreements between prospective spouses that are made before marriage intended to impact marriage (TFC 4.001).  In order to be valid, a pre-marital agreement must: be a writing, signed by both parties who have received (or had an opportunity to receive) a full disclosure of the other party’s financial standing. Furthermore, if the agreement deals with a party’s land, it must be notarized (TFC 4.002). Under TFC 4.003, a variety of things can be included in a pre-marital agreement, including, but not limited to: each person’s rights concerning either or both of their properties, the right to manage & control (buy, sell, use, mortgage, etc.) property, disposition (who will get what in the event of divorce or death), spousal support (or an agreement to not have spousal support), death benefits in life insurance policies, a required creation of a will or trust, and child support (though it cannot be reduced below the guideline standards). Couples have the option to include other provisions in their agreements, as long as they do not violate public policy.

Why would a couple desire a pre-marital agreement? What purpose does it serve? Well, there are a variety of reasons and purposes. These agreements can set or eliminate alimony obligations, set each parties rights & duties in a marriage, preserve inheritances for children that were from a prior relationship, or determine what property belongs to which party. Pre-marital agreements can also provide tax clarifications. For example, it can determine how taxes will be filed during the marriage, and who will be responsible for any liabilities.

Couples also have the option to revoke or amend their pre-marital agreement during their marriage through a written agreement signed by both parties (TFC 4.005). However, it’s important to remember that if the couple never marries, the agreement never takes effect. If, during the marriage, a party decides that they want to contest the pre-marital agreement, they have the option to do so during the first four years of their marriage, by pleading one of the defenses listed in TFC 4.006: unconscionability or involuntary execution. An agreement that is unconscionable is essentially one that is unfair, or weighs heavily on one party. If a party can prove that an agreement is unconscionable if before they signed it, they: did not receive fair or full information concerning all of the other party’s property or financial condition, did not voluntarily or expressly waive a right to get this information, and did not know (and could not have known) the information regarding the other party’s finances or property. The other defense, involuntary execution, requires proof that the pleading party did not sign the agreement voluntarily, because of the advice of counsel (or lack thereof), misrepresentation, the amount of information provided, or the significance of the information that was withheld.

Sometimes, circumstances in a marriage may change (for better or worse), and parties who initially did not have a pre-marital agreement may desire one after they have said their vows. In these instances, couples have the option of creating a post-marital agreement, which can convert separate property (property owned by a party before marriage or inherited during the marriage) into community property (property of both parties equally), and vice versa.

Every marriage is different, and couples are free to decide what is best for them. However, without these agreements, Texas will make various presumptions concerning a couple’s property, spousal support, and child support in the event of a death or divorce. Whatever the decision, and whenever it is made, there are options for couples that empower them to make their own decisions concerning their marital property and its classification. It is your property; you and your spouse have the power to determine who has power over it!

Written by: Valencia Campbell

Tyga vs. Travis: Who’s Your Daddy?

On February 1, Kylie Jenner gave birth to her first daughter, Stormi – and as with all things Kardashian, her pregnancy didn’t end without a juicy scandal. Kylie’s long-time ex, Tyga, recently made a few bold statements claiming Stormi is his daughter and demanded Kylie take a paternity test. Although the couple split in early April of last year – ten months prior to the birth – Tyga claims the two were sexually active as recently as nine months ago. If true, this makes a plausible case that Tyga is Stormi’s biological father. The only issue: Kylie is currently dating rapper Travis Scott, who she claims is the true father. This sets the stage for a turbulent battle for parental rights if Tyga makes good on his claim of paternity. So how might Tyga go about seeking parental rights for Stormi?

For purposes of this hypothetical, we will assume all parties are residents of Texas and their dispute will be governed under Texas law. In order to establish paternity, Tyga has three possible avenues to take. First, he may fill out an Acknowledgment of Paternity (AOP) at one of many field offices of the Office of the Attorney General Child Support Division, the local birth registrar, or any other certified entity. An AOP is a legal form admitting to biological paternity of a child and with it comes both rights and duties. Tyga stands to be granted rights such as possession of and access to Stormi, but also stands to bear duties such as the payment of child and medical support. Although this is one of the cheapest and simplest routes to establish paternity, there is one major drawback for Tyga: Kylie Jenner must also sign the AOP. For most this is not an issue, but Kylie is unlikely to consent to Tyga’s AOP when she has so ardently asserted that Travis Scott is Stormi’s  true father. Unfortunately, Tyga must take one of the two remaining avenues to establish paternity.

Tyga’s second option is to contact the Office of the Attorney General about filing a suit to establish his parent-child relationship with Stormi. This option will only cost him a nominal fee, making it a good choice were he in dire financial straits. The principal downside to this approach is that the Office of the Attorney General is not allowed to represent you in a paternity proceeding. They can assist you in seeking paternity, but at the end of the day they do not owe you a fiduciary duty like a private attorney does and they may not advocate for your position as zealously, either. Moreover, the Office of the Attorney General may proceed with the case at a snail’s pace as they handle thousands of cases per year; they are constantly backlogged with child support and paternity suits. This makes the Office of the Attorney General a good option for individuals who are limited financially, but less than optimal for those who can afford an attorney that will give them the intimate attention that every case deserves.

Tyga’s last option is to file a paternity action himself. By filing with the Court by himself, Tyga will be seeking a court order adjudicating him to be the biological father of Stormi. In a situation like this, he may request the Court to order DNA testing of the parties involved to establish Tyga’s biological paternity – a request Tyga has already made over social media. Should the DNA testing confirm that Tyga fathered Stormi, Tyga can then go about seeking custody and child support himself. As Tyga is presumably seeking a finding of paternity in order to be involved in his child’s life, having an award of custody is precisely the end goal that Tyga desires. The downside to this approach lies with the complicated procedures involved in any court proceeding. Tyga’s absence of formal legal training might hinder his ability to achieve his various goals. However, this route will only cost Tyga the filing fees involved in seeking paternity and possibly the fees associated with DNA testing. Therefore, this is a fast, relatively cheap option for Tyga.

In the circumstances at hand, it is clear that an Acknowledgment of Paternity is out of the realm of possibility for Tyga, as Kylie would never cooperate with him in that regard. Tyga’s more realistic options are to either request the support of the Office of the Attorney General in establishing a parent-child relationship with Stormi, to take matters into his own hands and represent himself in seeking a paternity determination, or to hire an attorney to represent him. His best course of action depends entirely on his priorities.

Written by: Spencer Page

Safety is Paramount!

Image result for rae carruthIn 1999, first round NFL draft pick Rae Carruth hired a hitman to kill his then-pregnant girlfriend to avoid paying child support. Although she didn’t die at the time, she later died after giving birth from complications of the attempted murder. A son was born with cerebral palsy as a result of trauma he suffered from the shooting. Carruth was found guilty of conspiring to murder the son’s mother in 2001, and sentenced to serve nearly 19 years in prison. He is scheduled to be released October 18, 2018.

Last month, Carruth expressed his remorse for the killing and his intent to seek custody of his son. But is he even “fit” to care for his disabled son? Texas law says no! Texas law public policy dictates that child custody decisions should be made based on the child’s best interest. A disability adds a special consideration to the already substantial weight of best interest. That consideration is the safety of the disabled child.

When looking to the best interest of a child, courts have traditionally considered about 9 factors announced in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). However, the best interest of a child could literally mean anything and everything. For this case with Rae Carruth seeking custody of his disabled son, the primary consideration here should be the concern for the safety of the child. Under Texas law, Carruth would be subject to involuntary termination of his parental rights under 161.001(b)(1)(T)(i) because he was convicted of murdering the child’s mother.

The fact that his rights would be subject to termination defeats his argument for gaining custody of his son. Further, from a best interest of the child standpoint, would it ever be in the best interest to place a child with the parent who is responsible for the death of the other parent? I say that it would not be. There are three factors in particular that would defeat any attempt by Carruth to establish that it is in the best interest of his son to be place with him. Those factors are: (1) the emotional and physical needs of the child now and in the future, (2) the emotional and physical danger to the child now and in the future, and (3) the stability of the home or proposed placement. The child’s emotional wellbeing would significantly be impaired by being placed with his father and it could create a really dangerous precedent in the law. This child should not be subjected to a constant reminder of the person who murdered his mother. This consideration goes hand and hand with the concern of his physical wellbeing. It has been established that the cause of the child’s disability was caused by the father’s actions. The child suffered an immense strain during his mother’s pregnancy when his father attempted to murder his mother. None of these circumstances point to a placement with Rae Carruth being in the best interest of his son. Lastly, there is a good chance that the father’s home will not be a stable place for the child. Carruth is currently serving a jail sentence for his role in the death of the son’s mother. He literally hired a hit man to kill her because she did not obey his wishes to terminate the pregnancy that resulted in his son. In my opinion, an individual that would go to such lengths is not a very stable person. The child would likely suffer immensely in the home of such an unstable person. Therefore, it would be contrary to the best interest of the son to be placed with Carruth.

Rae Carruth should not be allowed to seek custody of his son. Although this case will likely be heard under North Carolina law, reviewing it under a Texas Law standard,  Rae Carruth’s parental rights would have likely already been terminated. Further, it is contrary to the best interest of the child to place him with his father. Rae Carruth’s request should be denied.

Image result for rae carruth

Written by: Kourtney Malone-Parker