Prenuptial agreements are not particularly common in Texas, or in most other states. Texas is a community property state, which means that all assets acquired during a marriage, no matter by which partner, are treated presumptively as equally shared by the two spouses.
The only assets that are not shared are those determined to be separate property, such as those owned prior to the marriage, those received by gift, inherited items, and a few other forms of separate property. Most couples do not have significant separate property.
Often, although not always, prenuptial agreements are thought to be the tools of the rich. However, if you have assets of significant value before you marry—whether through inheritance, ownership of a business, or ownership of oil wells that provide future income—you might ask for a prenuptial agreement to keep those assets from becoming community property belonging partly to your future spouse. How does such an agreement work in a community property state like Texas?
What Is A Prenuptial Agreement?
At its most basic, a prenuptial agreement – often called a prenup – is a contract between the parties who plan to marry that governs the division and use of property owned by the prospective spouses at the time of their marriage. The agreement is typically suggested by the would-be spouse who owns more assets prior to the marriage. Often a party without significant debts will request a prenup in order to ensure that significant debt does not become the obligation of both spouses.
A prenuptial agreement, as its name implies, must be finalized before the marriage to be valid (before the nuptials). Basically, a prenup sets forth the rights of a spouse to control the assets owned prior to the marriage. It also could grant rights to some property to the other spouse under certain circumstances, and it can determine how pre-owned property will be distributed should the spouse who owned the property before marriage die during the marriage. A prenup cannot determine custody of children or limit the amount of child support to be paid in the event of divorce.
To be enforceable, a prenup must be in writing and executed in contemplation of marriage. Like any contract, both parties must sign the agreement and do so voluntarily. Under Texas law, a prenup cannot be enforced if the spouse seeking to enforce the agreement was dishonest about financial obligations or assets owned. Prenups can be changed after marriage if the spouses agree.
If You are Contemplating a Prenup, Talk To Orsinger, Nelson, Downing & Anderson LLP
A prenuptial agreement is not a sign that you believe divorce is inevitable. Sometimes it just makes sense to protect assets from creditors. If you believe you might want a prenup prior to marrying – or if your prospective spouse is asking for a prenup – you should talk to the Dallas prenup lawyers Nelson, Downing & Anderson LLP. We can help you evaluate the options available. Call us at (214) 273-2400 or contact us here. We also have offices in Frisco, Fort Worth, and San Antonio.