If you are thinking about getting married in Texas, you may be wondering whether you should get a pre-marital agreement (prenuptial agreement) or wait after marriage and get a post-marital agreement (postnuptial agreement). Both types of agreements can help protect your assets and interests in the event of divorce or death, but they have different advantages and disadvantages.
Pre-marital Agreements
A pre-marital agreement, also known as a prenuptial agreement or simply prenup, is a contract entered into by a couple BEFORE they get married. The agreement typically outlines how the couple's assets and debts will be divided in the event of divorce or death. Prenuptial agreements can be very helpful for couples who have different levels of income, assets, or business interests, or those who have children from previous relationships and who want to protect their assets and income from those assets in the event of a divorce.
Pre-marital agreements are likely to be upheld by the courts. In Texas, prenups are generally upheld by the courts, even if one spouse later changes their mind. This is because the courts want to protect the interests of both parties and do not want to encourage people to enter into prenups that they do not intend to keep. For a Texas prenup to be valid and upheld by a court, each party must have the opportunity to have the agreement reviewed by their own separate attorney and an opportunity to ask questions and negotiate any changes.
Prenups can be used to address changes in your financial situation before they happen. Let's say you are about to get married but you are also anticipating to inherit a large sum of money. You are concerned that if you get divorced, your spouse might be able to take your assets, including your inheritance. You can use a prenup to protect your inheritance from being taken in a divorce. In your prenup, you can state that your inheritance will remain your separate property, even if you get divorced. This means that your spouse will not be able to claim any of your inheritance in the event of a divorce.
In Texas, the situation with postnuptial agreements is a bit different. They can indeed address changes in financial circumstances, like inheritances received after marriage, but there's a catch when it comes to their enforceability. For a postnuptial agreement to hold up in Texas, both spouses need to enter into it voluntarily and provide full disclosure of their assets and liabilities. Additionally, the agreement has to be fair and conscionable at the time it is enforced. If one spouse can prove they were coerced, didn't fully understand the agreement, or that the agreement was wholly unfair, it might affect the validity and enforceability of the postnuptial agreement, even provisions related to inheritances. So, if you, or your spouse inherit a large sum of money or assets after you are married, you may feel pressured to sign a postnup, even if you do not want to. If that’s the case, the postnup may not be considered valid in court.
Post-marital Agreements
A post-marital agreement, also known as a postnuptial agreement or simply postnup, is a contract that is entered into by two people AFTER they are married. This type of agreement is also known as a partition of property, or marital property or community property. The agreement typically outlines how the couple's assets and debts will be divided in the event of divorce or death. Post-marital agreements can be helpful for couples who experience a change in their financial situation after they get married.
A post-marital agreement can be easier to get out of than a premarital agreement. This can either be an advantage or a disadvantage. If you and your spouse get a divorce, the court may be more willing to modify or terminate a post-marital agreement, especially if there have been significant changes in one spouse’s financial situation since the agreement was signed. Postnups are less likely to be upheld by the courts than pre-marital agreements, especially if there have been significant changes in the couple's financial situation since the agreement was signed. This is less true for prenuptial agreements, as the courts are more likely to uphold the agreement, even if one or both of the spouses are against the agreement at the time of the divorce.
Post-marital agreements are generally considered easier to modify. Although prenups can also be modified, they require more paperwork and legal fees to do so. So if you frequently change your mind, a postnup would be the better choice for you.
Which Type of Agreement is Right for You?
The best type of agreement for you will depend on your individual circumstances. If you and your future partner have different financial situations or assets you want to protect, a pre-marital agreement could be a good idea for when you tie the knot. But if you're worried about either of you having a change of heart later on, you might want to think about a post-marital agreement instead.
Ultimately, the decision of whether to get a prenup or a postnup is a personal one. You and your spouse should carefully weigh the pros and cons of each type of agreement before making a decision.
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If you are considering getting a pre-marital agreement or a post-marital agreement, it is important to speak with an experienced family law attorney. The team at Sims & Purzer, PLLC, led by experienced Attorney Sonja Sims, is here to assist. With extensive experience in Texas family law since 2008, we know the importance of drafting solid pre-marital or post-marital agreements and have the know-how to tailor your agreement to your specific circumstances. Don't navigate these waters alone. Contact us today, and let's work together to craft an agreement that serves as a robust foundation for your future marriage or one that solidifies both partner’s financial positions.