When you are planning to divorce in Texas, it may be difficult to reach any type of marital settlement agreement with your spouse if you are anticipating a contentious divorce case. Yet you might have specific assets that you want to exclude from the division of community property, or assets that you want to clarify are separate property and are not subject to division in your divorce.
Ideally, these issues would have been addressed in a premarital agreement (i.e., before marriage) according to the Texas Family Code. However many people do not enter into premarital agreements and wish they had done so. Here is where a post-marital agreement can become extremely important and helpful.
Texas law allows spouses to enter into post-marital agreements through which they can address similar issues to those contained in a premarital agreement. The key difference is that a post-marital agreement is signed after the marriage, while a premarital (or prenuptial) agreement is signed before the marriage.
Managing Finances and Property During the Marriage
Even if you are not anticipating a divorce soon, a post-marital agreement can allow you to enter into an agreement with your spouse about how finances will be managed during the marriage from the point of signing the agreement onward. In addition, you can reach an agreement about which spouse can manage one or more particular assets, and who has those responsibilities. A post-marital agreement is a legal contract, and thus, once the parties enter into an agreement about these types of issues, they must abide by the terms or risk additional litigation.
Identifying Separate Property
Another purpose of a post-marital agreement, similar to a prenuptial agreement, is to identify and clarify which debts or assets are separate. In other words, through this agreement, you can specify that certain debts or assets are owned by one spouse alone and will not be subject to division as community property in the event of a divorce.
In general, without a prenuptial or post-marital agreement, there is a presumption of community property under Texas law–unless a spouse can prove by clear and convincing evidence that a specific asset or debt is separate property. The post-marital agreement can serve as excellent evidence for the Court to show that some asset is your or your spouse’s separate property.
Dividing Community Property During a Divorce
Post-marital agreements in Texas also serve the important purpose of allowing spouses to determine how community property will be divided in the event of a divorce. Without a valid agreement, the court will divide community property in a divorce “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”
While there are limits to what a court can determine to be “just and right,” those limits do not allow the parties to the divorce suit to have direct control over the result. Through a post-marital agreement, you are able to directly control the result—subject to agreement—to often achieve results that cannot be ordered by the judge in a divorce case.
Keep in mind, however, that any agreement about the division of community property cannot be unconscionable, and the agreement must be entered into freely by both spouses.
Contact Our Dallas Post-Marital Attorneys Today
If you wish you had entered into a premarital or prenuptial agreement (sometimes called a “pre-nup”) before your marriage, it may still be possible to reach an agreement with your spouse through a post-marital agreement.
One of our experienced Dallas post-marital attorneys can speak with you today about your circumstances. Contact Orsinger, Nelson, Downing & Anderson, LLP today online or call our firm at (214) 273-2400 for assistance.