You’ve probably heard people refer to or make jokes about pre-nups but do you really know what they do?
The pre-nuptial or post-nuptial agreement can define the right to buy, sell, and use property during the marriage. The agreement, which is a legal contract, can control the disposition of property on separation, divorce, or death. Yes, you read that correctly—including death.
So even if you think you’ll never divorce (even though your odds are 50/50), there’s a 100% probability that you will die at some point. Put simply, pre-nuptial agreements can help everyone.
The difference between a pre-nuptial agreement and a post-nuptial agreement is that in a post-nuptial agreement the parties are already married. Both agreements, done correctly, are legally valid. So while it is never too late to have a marital agreement, sometimes it is easier to get a pre-nuptial agreement before property and funds begin to comingle.
If you are looking to get a pre-nup prior to saying “I do,” make sure you leave enough time before the wedding for it to be drafted. Leave plenty of time before the wedding to discuss and present the agreement to your spouse—the earlier you get it done the better! Do not wait until the week or the night before your wedding to address this with your spouse. Waiting until the last minute will not only cause unnecessary stress on your relationship, but more importantly, it can cause legal issues down the line should a divorce occur.
In Texas, for a pre-nuptial (or pre-marital) agreement to be valid it must:
- Be in writing; and
- Signed by both parties.
In other words, pre-nups cannot be oral and they must be agreed to by both spouses—no unilateral agreements.
While pre-nups do not have to be fair or provide consideration for the agreement, they cannot be unconscionable. Pre-nuptial agreements also cannot violate public policy nor can they affect the rights of child support. Meaning, you can never eliminate child support with one of these agreements, no matter what. However, you can agree to eliminate spousal support or spousal maintenance (commonly referred to as alimony).
After marriage, a pre-nuptial agreement may be amended or revoked only by a written instrument signed by both parties. So if you and your spouse want to make some changes, it can be done! As long as you and your spouse are in agreement, it’s in writing, and it does not violate any laws, you can amend your agreement as many times as you’d like.
For more information on pre or post nuptial agreements, give us a call at 214-494-9916.