Post-nuptial Agreement in Texas
Texas is one of a handful of states across the United States that is a community property state by statute. Under Title 1, Subtitle B, Chapter 3, §A there are specific definitions of what constitutes separate property and what is considered community property. In general, any assets or debts a couple brought into the marriage, an inheritance, gifts or personal injury settlements are considered separate property. The exception would be if there is real estate that one partner owned before the marriage and the spouse contributed financially towards the property during the marriage, they may be entitled to a refund of the funds they spent.
Why Consider a Post Nuptial Agreement
While most couples would prepare a prenuptial agreement to protect themselves in the event their marriage dissolved later, there are specific instance when a post nuptial agreement may be beneficial including:
- Family business– should you or your spouse start a business while married, a post nuptial agreement could protect the business in the event of a divorce. This would ensure that even though Texas is a community property state, one spouse could maintain control of the business.
- Creditor protection– if one spouse has accumulated a significant amount of debt during the marriage, it may be useful to protect the other spouse in the event of death or divorce. Keep in mind, jointly held debt is still the responsibility of both parties; a post nuptial agreement may not be used with the intention of defrauding a creditor.
- Child protection – if one spouse came into the marriage with children, a post nuptial agreement may be useful to protect the children in the event of divorce or death. This may be particularly important if a remarried parent wishes to leave specific property to their child or children.
- Modifying a prenuptial agreement – in some cases, the couple may decide the terms of their prenuptial agreement need modification. Post nuptial agreements would negate the prenuptial agreement in the event of divorce or death.
- Community property to separate property – a post nuptial agreement could be used to modify asset ownership so it is not considered community property. Examples would be real estate which both spouses own, retirement accounts, etc.
Legal Requirements of a Texas Post nuptial Agreement
As with any legal document, there are certain requirements to ensure a post nuptial agreement cannot be disputed. In addition to signatures, dates and witness signatures post nuptial agreements must clearly demonstrate:
- No coercion– under no circumstances can a partner be forced to enter into a post nuptial agreement. Both parties must agree on the terms and conditions of the agreement without threat from the other.
- Relative fairness– the terms of the post nuptial agreement must be reasonable. The agreement may not violate Texas laws and should not contain property divisions that could be deemed unconscionable. An example of this would be if the agreement transferred the bulk of assets to one spouse and the bulk of the debt to another spouse. This would be unfair by any standard.
- Disclosure of assets and debts– prior to entering into a post nuptial agreement, both parties must make full disclosure of all assets and debts so both parties have a general understanding of their current financial situation.
According to the law, both parties to the agreement must have the emotional and mental capacity to enter into the agreement of their own free will. Your family law attorney may recommend going to the court after a post nuptial agreement is prepared and signed and ask for a declaratory judgment action which can prevent costly litigation if the agreement should be contested later. This process allows the court to determine the validity of an agreement once it has been prepared which can decrease the likelihood of a dispute later.
Working With a Family Law Attorney
When a couple wishes to modify a prenuptial agreement or has determined it is in their best interest to enter into a brand new agreement to deal with matters they may encounter as a result of divorce or death, it is important to work with a family law attorney who understands Texas family law statutes pertaining to property division. You should discuss the goals of your post nuptial agreement as well as the reasons why it makes sense for your specific circumstances. Post nuptial agreements should always be tailored to address your needs; there is no one-size-fits-all form that will work for every couple.
Brandy Austin Law Firm, located in Arlington, Texas provides a range of family law services in Tarrant, Johnson and Dallas counties. We understand how important it is to get the details of post nuptial agreements right. We will take the necessary time to meet with both parties to draft a post nuptial agreement with protections for both partners and children of prior marriages. Remember, post nuptial agreements can be contested unless your attorney has ensured all of the proper language is included. Contact Brandy Austin Law Firm at 817-841-9906 and let us help you draft a legally enforceable post nuptial agreement to meet your needs.