PRENUPTIAL AGREEMENTS AND SEPARATION AGREEMENTS

What Types Of Marital Agreements Exist in Texas?

The Texas Family Code provides for two types of marital agreements: (i) premarital agreements, known as prenuptial agreements or “prenups,” and (ii) marital property agreements, known as  post-nuptial agreements or partition or exchange agreements.

What Is A Premarital Agreement?

A premarital agreement is an agreement in writing signed by both parties used in situations when one or both people about to marry wish to keep the parties’ separate estates distinct from the community estate. A premarital agreement provides for some certainty upon divorce or separation such that property can be quickly and easily settled in a divorce. Premarital property agreements are made possible by the state constitution, by Texas statutes, and by case law. In addition, public policy dictates that premarital agreements should be enforced, and the law favors these agreements.  Property that may be subject to a premarital agreement is broadly defined to include any “interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” Our experienced prenuptial lawyer can draft premarital agreements and discuss how to best protect your separate property interest prior to marriage. 

Texas Family Code Section 4.003 provides the following comprehensive list which can be considered in drafting a premarital agreement:

• Property Rights & Obligations: The rights and obligations of each of the parties in any of the properties of either or both of them whenever and wherever acquired or located;

• Management of Property: The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

• Property Division On Dissolution: The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

• Spousal Support: The modification or elimination of spousal support; 

• Mechanisms to Enforce of Agreement: The making of a will, trust, or other arrangements to carry out the provisions of the agreement;

• Life Insurance Benefits: The ownership rights in and disposition of the death benefit from a life insurance policy;

• Law Governing Agreement: The choice of law governing the construction of the agreement; and

• All Other Matters Allowed by Law: Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Our Family Law attorneys understand that the best way to resolve a dispute is often before it happens or outside of a courtroom. At the Wilson Legal Group, our attorneys are trained in the preparation of marital agreements, as well a mediation and arbitration to reach a peaceable resolution of your dispute. We pride ourselves on being able to help our clients avoid the cost and burden of litigation through prenuptial and post-nuptial agreements or mediation that results in a fair and equitable agreement. Our team of skilled legal professionals will work closely with you to understand your interests and make sure that you are protected and receive what you are entitled to.

How To Make A Prenuptial or Premarital Agreement?

Premarital agreements provide for the orderly dissolution of property in the event of marital discord.  While premarital agreements do make the division of community and separate property easier, it is equally important that the premarital agreements are created to be enforceable.  For instance, a premarital agreement is enforceable if the party against whom enforcement is requested proves the following:

• Fair and Reasonable Disclosure: You must be provided a fair and reasonable disclosure of the property or financial obligations of the other party; 

• Voluntarily Waiver of Disclosure: You voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and 

• Adequate Knowledge of Property: You have, or reasonably could have had, adequate knowledge of the property or financial obligations of the other party.

However, if the party did not sign the agreement voluntarily, or the agreement was unconscionable when it was signed, then the agreement may be per se void. It is recommended that both parties have lawyers when preparing and completing premarital agreements.

Our skilled family attorneys can help you prepare, negotiate, and enforce a prenuptial or post-nuptial agreement.

What Is A Partition & Exchange Agreement? 



A partition and exchange partition is an agreement between spouses that allows them to convert community property into the separate property of one spouse. While a partition and exchange partition agreement is entered into after marriage, the property transferred becomes that spouse’s separate property, and the transferring spouse loses any community right in and to that property.