Understanding Prenuptial Agreements
Many different tasks must be handled as a party gets ready to marry. For some couples, one of these steps is the creation and execution of a prenuptial agreement. These agreements are fairly commonplace, although they often are viewed as controversial thanks to celebrity usage.
Controversy aside, it helps to understand what is involved in a prenuptial agreement, what is allowed and what is not allowed.
What Is a Prenuptial Agreement?
A prenuptial agreement is made between two parties in anticipation of marriage. Prenuptial agreements normally involve the division of property, including land, real property, retirement accounts and other assets, if the parties divorce following being married.
For a prenuptial agreement to be effective, it needs to be entered into prior to marriage. The agreement then becomes effective as soon as the parties are legally married.
Who Needs a Prenuptial Agreement?
Technically anyone can get a prenuptial agreement, but certain situations almost always call for one.
If any of the following situations apply, it is recommended that the couple consider a prenuptial agreement:
- If one or both of the individuals is bringing a great deal of debt into the marriage, and they do not wish to burden the other party with their respective debt in the event the married does not last.
- Along the same lines, if one or both of the individuals is bringing a large amount of property into the marriage, they may consider a prenuptial agreement.
- If this is a second marriage for one or both of the spouses.
- If one or both of the spouses has children from a previous relationship or marriage.
- If any of the above circumstances apply, and one or both of the spouses wishes to secure their respective estates for their children.
Of course, no one situation is like the other, and this list is by no means exclusive. Every couple brings their own unique set of circumstances. The couple can at least talk with a family law attorney to discuss whether a prenuptial agreement is wise for them.
What Does a Prenuptial Agreement Cover?
In the State of Texas, a prenuptial agreement can cover many different aspects of a relationship. It mainly governs the rights and duties each spouse has with respect to debt and assets brought into the marriage.
These rights involve allowing the spouse to do what he or she wants with the property, including selling it, transferring the property or any other actions.
A prenuptial agreement deals with how property will be allocated in the event the spouse dies or the parties divorce.
A prenuptial agreement also can include provisions regarding the right for the other spouse to receive alimony or a waiver of alimony in the event they divorce.
The agreement may also include the preparation of a will or trust to ensure that the provisions of the prenuptial agreement are followed and can dictate whether the other spouse has the right to death benefits from the other spouse’s life insurance policy.
If the spouses are from different states, the prenuptial agreement can dictate which state’s law will govern in the event a dispute comes up later.
What Does a Prenuptial Agreement Not Cover?
However, certain legal issues cannot be covered in a prenuptial agreement. In Texas, a prenuptial agreement cannot limit how much child support can be received in the event the parties divorce and a child support order need to be issued.
The reason for this is the child support belongs to the child and not the parent. Since the child was not a party to the prenuptial agreement, the parents cannot agree on an issue that does not solely concern them. In addition, child support orders change as life changes, and a prenuptial agreement does not allow for modifications later.
Child custody, conservatorship and access cannot be handled in a prenuptial agreement, as well. These decisions rest in the family law court. Since the best interests of the child govern these decisions, a prenuptial agreement cannot control what happens to the children of the parties if the parents divorce.
Enforcing a Prenuptial Agreement
The State of Texas has adopted the Uniform Premarital Agreement Act (UPAA), which states that a prenuptial agreement must meet the following factors for it to be enforced:
- The agreement must be in writing;
- The agreement does not have to be supported by consideration, meaning something of value that one party gives to the other party to show support for a contract;
- The agreement must state that it was written and entered into “in contemplation of marriage,” which means the parties must have signed the agreement in anticipation of a definite and upcoming marriage.
However, if any of the following factors apply, the agreement is considered legally unenforceable:
- It is discovered that one of the spouses did not sign the agreement voluntarily;
- The agreement is considered to be unconscionable.” This means that it is so grossly unfair that enforcing it would be against the interests of justice. Whether an agreement is unconscionable is normally a decision made by a judge and is highly fact dependent.
Can a Prenuptial Agreement Be Changed or Terminated?
A prenuptial agreement may be modified or terminated after the parties marry. This change must only be made upon a written agreement signed by both parties. If the agreement is modified and not completely terminated, this new agreement will be referred to as a “postnuptial agreement.”
Contact A Family Lawyer Today
If you have questions about you need a prenuptial agreement, please contact family lawyers at Scott M. Brown and Associates. You can reach us by calling (979) 318-3075 or completing our online form. We have offices in Angleton, Webster/ Clearlake, and Pearland.