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