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Should I get a Prenup?

Texas Law allows parties to have a premarital agreement, or prenup, between both people so they may enter into a contractual agreement regarding property issues and other matters prior to marriage.  This contract remains in effect during marriage and in the event there is a divorce, the prenuptial agreement will govern how property will be divided as separate or community property at the divorce or death of a spouse. The prenup may also address issues such as spousal support or alimony.  That is, aprenup may include that one spouse will pay alimony to the other spouse if that spouse did not attend marital counseling before filing for divorce.  A prenup can also ensure financial stability if one spouse enters the marriage with debt and the other spouse does not have debt and would like to protect their income as separate property. A prenup may also protect separate property upon death of a spouse.

However, a prenup may not include terms that violate public policy or impose criminal penalties.  A prenup cannot waive a spouse’s 401k or other defined benefit plan.  This may only be waived by agreement after the divorce.Further, a prenup is not designed to protect against creditors.  That is, you cannot make your separate property your spouse’s separate property to avoid paying your debts.  Also, a prenup may not waive one parent from child support which would be court ordered.  However, a higher amount of child support than the Texas Family Code requires may be agreed to.  Visitation and conservatorship may be included but a Family Court will review those terms in light of what is in the child[ren]’s best interest.

If there is no prenup, then any property, not separate property, including property acquired during marriage, income obtained during marriage, income from separate property, will be characterized as community property.  Community property will be divided in a ‘just and right’ manner and not always equally.  This includes salary, 401K benefits, and pensions.  Income from separate property, such as distributions from separate property, investment growths in stocks or mutual funds, rental property income, is considered community property.  Separate property prior to marriage or property received by gift, devise, or descent will remain separate property.

A prenup is enforceable only if is made properly and meets the requirements outlined in the Texas Family Code. To be enforceable, a prenup must be (1) in writing, (2) signed by both parties, (3) both spouses disclosed assets and liabilities prior to signing the agreement, and (4) both spouses waived the right to further disclosure.  An oral agreement is not acceptable.  A prenup may be rejected by a court, for example, if some evidence supports the finding that one party signed involuntarily or any clause in the agreement was unconscionable at the time it was signed.  An unconscionable term is when one spouse fails to inform the other spouse of property, other assets, and debts if the other spouse did not waive their right to this information.  Also, a prenup may not be pressured the night before or day of the wedding, especially without any notice. Both spouses should have separate counsel to review the agreement and ensure it is fair and equitable to both parties.