Prenuptial Agreements in Texas
Prenuptial agreements (prenups) frequently receive attention by the news media. For example, when famous country singers, Blake Shelton and Miranda Lambert, divorced last year, it was a simple and fast process despite their apparent wealth. Reports were that they had a prenuptial agreement that both adhered to and did not challenge. Division of their assets in case of divorce had been decided before they even married.
Although the Shelton Lambert divorce was in Oklahoma, Texas law provides for prenuptial agreements. It is important to note that prenups are not just for wealthy couples. There are many reasons why prenups can benefit most couples and, if it complies with the legal requirements, it will be enforceable upon divorce. This saves time and money when the important decisions regarding division of assets is made prior to the marriage at a time when the couple feels loving toward each other.
What Exactly is a Prenup
According to the Uniform Premarital Agreement Act (UPAA) adopted by Texas, a prenup is “an agreement between spouses made in contemplation of marriage and to be effective upon marriage.” When it is couched in terms of contemplation of marriage instead of contemplation of divorce, the stigma that often surrounds the idea of prenups is lessened.
What Can Be Included in a Legally Drafted Prenup
A prenup that meets Texas legal requirements can include the following terms:
- Clarify how all assets will be divided. This is important when one party has significantly more assets than the other going into the marriage.
- Establish that one party is not responsible for the debts of the other party. This is applicable when one party going into the marriage has significant debt and the other party needs protection from creditors.
- It is a second marriage and each party wants to protect their own assets for inheritance by their own children or other heirs. It also provides for each party to comply with obligations they still have from a previous marriage, like mortgage payments or providing for health insurance.
- Business owners can obtain protection for their business partners by having a prenup that spells out the sole ownership of the business and will prevent the ex-spouse from becoming a business partner in case of divorce.
- You own property as your sole property and want to clarify that prior to the marriage to avoid complex litigation in case of divorce.
- Determine the amount of spousal support, if any, that will be awarded.
What Cannot Be Included in Legally Drafted Prenup
There are some issues that will not be honored even if included in a prenup. Those are:
What Must Be Included for the Prenup to be Enforceable
An experienced family law attorney will know what to include for a prenup to be valid and will also know how to attack the validity of a prenup when necessary. Basically, the agreement will be valid if:
- It is not unconscionable. This means a gross unfairness in distribution of assets may not be upheld by the court. If one spouse will not have enough assets to survive or be required to go on welfare if it is enforced, it will not be valid.
- There has been a substantial unforeseen change in the circumstances of one party to a degree that it would be against public policy if the agreement is enforced.
- Both parties had separate counsel who reviewed the agreement.
- The agreement is signed and dated by both parties.
- The parties are aware of the rights under Texas law that they may be waiving by agreeing to the terms of the prenup.
- There was full disclosure of income and assets. This includes an increase in future income if the increase is known about at the time the prenup is signed. If one party hides anything from the other, the prenup will not be valid.
- Neither party was coerced into signing the prenup. The signing was purely voluntarily and both parties signed it with full knowledge of its terms. The further in advance of the marriage that the prenup is signed, it is more likely the parties were not coerced.