How Will a Pre-Nuptial Agreement Protect Your Rights and Your Property?
You’ve worked hard and made good decisions with your earnings and your investments, building a substantial estate. You’ve focused on your career and have a solid foundation for the future. Now you want to make a lifelong commitment to a partner, but you don’t want to put all that you’ve worked for in jeopardy. That’s when you need a well-drafted pre-nuptial agreement.
What Is a Pre-Nuptial Agreement?
A prenuptial agreement (also commonly referred to as a “prenup”) is essentially a binding and enforceable contract between two parties who plan to get married. Most often, it focuses on how the assets and debts of the marriage will be divided in the event of a breakup. In the absence of a prenuptial agreement, that process will be governed by state law. A prenuptial agreement differs from a postnuptial agreement because it is entered into before marriage (whereas a postnuptial agreement is executed after the date of the wedding). It’s important to understand that prenuptial agreements are based on state laws and may vary significantly from state to state.
Are There Any Limits on What Can Be Agreed to in a Prenuptial Agreement?
The common issues addressed in prenuptial agreements include:
- The identification of community property and separate property—This is particularly important under the community property laws in Texas. The parties can specify in a prenup what property is and is not considered community property.
- The identification of marital debt vs. individual debt
- An allocation for spousal support—Instead of battling over alimony, the parties can agree to a specific amount or to waive any right to spousal support
- The protection of your children in the event of your death—You can include provisions in a prenuptial agreement that ensure that your spouse does not take property you intended to give to your children from a previous marriage.
- Protection of family property—You can specify in a prenup that certain items of property, such as heirlooms or inheritances, remain in your family
There are certain issues, however, which cannot be the subject of a prenuptial agreement:
- Child custody and parenting time—The law allows the parties to a divorce to agree on the terms of custody and visitation without a hearing, but such agreements must still be submitted to the court for approval. They cannot be part of a prenuptial agreement, unless the prenuptial agreement is reviewed and approved by the court.
- Child support—As with custody and visitation, all agreements regarding child support must be submitted to the court for approval
- The day-to-day responsibilities of the parties during the marriage—The courts will typically not enforce agreements regarding housekeeping, maintenance or other daily tasks
What Are the Advantages and Disadvantages of a Prenuptial Agreement?
The benefits of a valid prenuptial agreement typically include:
- The protection of specific items of property, including family keepsakes, investments and pre-marriage net worth
- A clear definition of what qualifies as marital property
- A reduced risk that you will be responsible for your spouse’s reckless spending or debt
- Less expense, should the marriage end, as you won’t have to go through a full-blown divorce process
- Greater communication with your spouse—Money is often the most difficult thing for couples to discuss. When you are upfront about finances, you’ll often find that it’s easier to talk about everything.
There can be some downsides to a prenuptial agreement, though:
- It may make you question the level of trust in your relationship—If you really trust each other, why would you need a prenup, right? Surprisingly, many couples find that by making agreements about money upfront, they are then free to focus on the other parts of the relationship.
- You may not have equal bargaining power with your spouse-to-be: Often, when one party has more financial acumen, there can be an imbalance in the division of debts and assets
Contact the Proven Family Lawyers at Bailey & Galyen
At the law office of Bailey & Galyen, we have a comprehensive knowledge and understanding of Texas family law, including the uses and benefits of a pre-nuptial agreement. We offer a free initial consultation to every client. To speak with an experienced divorce and family law attorney, contact us by e-mail or 844-402-2992 call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.
