What is a Prenup, and Should I Get One?
A prenuptial agreement is used to define the rights and obligations of couples who are about to marry. Depending upon the nature of your relationship with your future spouse, it may be prudent to first enter into a prenup to protect your rights and interests.
A prenup may generally cover any matter so long as it does not violate public policy or law, negatively impact a child’s right to support, or attempt to defraud potential creditors. This means that a prenup can dictate the duties of the individuals during their marriage such as housework, career sacrifices, and even the religious upbringing of children. However, most prenups focus on the financial responsibilities of the couple, including their right to certain property and disposition of such property upon divorce or death. If you desire contractual support for responsibilities and rights within your marriage, a prenup is a recommended avenue.
In Texas, income accrued during a marriage is presumed to be community property, meaning that each spouse owns a one-half interest in that property. This is true regardless of the actual amount of income earned by either spouse. To avoid this, prenups often dictate that certain property and future income will be held separately and not commingle into community property.
A valid prenup should specifically detail the arrangement desired by the couple. If the prenup does indicate that each spouse’s property will be separate from the community and their significant other, actions should be taken and precisely followed throughout the marriage to ensure that subsequent behavior will not render the prenup immaterial.
Texas law requires that certain formalities be followed for a prenup to be found valid. For example, full financial disclosure by each individual must be produced to the other with the opportunity to review before signing. The opportunity for each side to independently consult with legal counsel should further be offered and encouraged. Texas courts have declined to enforce prenups forced upon an individual shortly before a wedding, and Texas law favors fair negotiation in contract.
A poorly drafted prenup may undermine the entire purpose of the agreement and result in unintended consequence later on. Insufficient specifications and detail regarding restraints on ordinary rights in a prenup will not be rewritten or revised by a court if certain provisions are left out or incorrectly stated at the time of drafting. Because of this, it is advisable to have experienced counsel draft your prenup and thoroughly review the document before signing.
Waldron & Schneider’s transactional attorneys are well versed in creating comprehensive and enforceable premarital agreements or ensuring that such agreements presented to our clients are reasonable and fair. If you are interested in a prenup or want a proposed prenup to be reviewed, please contact our office to speak with one of our attorneys.
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