FAQs About Prenuptial & Post Marital Agreements in TX

Premarital and post-marital agreements are valuable tools for couples who wish to define their financial rights and responsibilities, plan for the future, and protect their individual interests. These agreements can be a source of peace of mind, but they often raise questions about their legal implications, fairness, and enforceability.

Frequently Asked Questions About Premarital & Post Marital Agreements

At Shemesh Family Law, our Dallas-Fort Worth family law attorneys have compiled a list of the most frequently asked questions (FAQs) about premarital and post-marital agreements. Whether you are considering one of these agreements before getting married or seeking to modify an existing post-marital agreement, we hope these answers will help clarify any confusion and provide insight into the process. Our Dallas-Fort Worth divorce lawyers serves clients from throughout the Dallas-Fort Worth metro area, including residents of Dallas County, Collin County, Tarrant County, Rockwall County, Denton County and Hunt County. Contact our family law firm for your initial consultation.

1. What is the difference between a premarital and a post-marital agreement?

Premarital agreements (also known as prenuptial agreements or “prenups”) are executed before marriage and outline how the couple’s assets, debts, and other financial matters will be handled in the event of divorce, separation, or death. These agreements are particularly useful for individuals entering marriage with significant personal assets, debts, or children from previous relationships.

Post-marital agreements (or postnuptial agreements) are similar but are executed after the couple has already married. They allow spouses to revise their property and financial arrangements, often in response to changing circumstances, such as the acquisition of new assets, the birth of children, or evolving business interests.
The primary difference between the two is the timing of when the agreement is made—before or after marriage. Both agreements must comply with Texas law to be enforceable.

2. Are premarital and post-marital agreements legally enforceable in Texas?

Yes, both premarital and post-marital agreements are legally enforceable in Texas, provided they meet the requirements set forth by the Texas Family Code. To be enforceable, these agreements must be:

• In writing (oral agreements are not valid under Texas law),
• Voluntarily executed by both parties (without coercion or duress),
• Fair and equitable (the terms should not be unconscionable or one-sided),
• Based on full financial disclosure (both parties must disclose their assets, liabilities, and income accurately).

If these conditions are met, the agreement will likely be enforceable in a Texas court. However, a court may invalidate an agreement if it is found to be fraudulent, unfair, or signed under duress.

3. What happens if one party doesn’t agree to the terms of the agreement?

In Texas, both parties must mutually agree to the terms of the premarital or post-marital agreement. If one spouse refuses to sign the agreement, then it will not be valid. Both parties must have the opportunity to negotiate the terms and seek independent legal counsel. If one spouse feels pressured into signing, the agreement could later be challenged in court.

It’s also important to note that each spouse has the right to walk away from the negotiation process. Any agreement must be entered into freely and voluntarily, with full understanding of its implications.

4. Can we modify or revoke a premarital or post-marital agreement after we are married?

Yes, in Texas, premarital and post-marital agreements can be modified or revoked during the marriage, provided both parties mutually agree to the changes.

To modify or revoke an agreement, both parties must execute a written amendment or revocation document, which should be signed by both spouses and may need to be notarized. Any changes must be made with the same legal formalities as the original agreement.

For example, if the couple’s financial situation changes, they may decide to revise the terms of property division, spousal support, or debt responsibility. It’s important to consult with a family law attorney to ensure that any modifications comply with Texas law.

5. How does Texas law affect property division in a premarital or post-marital agreement?

Texas is a community property state, meaning that, unless otherwise specified in a valid premarital or post-marital agreement, property acquired during the marriage is considered community property and is subject to division in the event of divorce.

A premarital agreement allows spouses to opt out of the community property system by specifying that certain property will remain separate property (property owned before marriage or received by gift/inheritance during the marriage). Similarly, a post-marital agreement can clarify how property will be divided if the couple’s financial situation changes, or if one party wishes to protect their separate property interests.

If no agreement is made, community property laws will apply, and property will be divided equally between spouses upon divorce. However, with a properly executed premarital or post-marital agreement, couples can tailor their property division to fit their needs and priorities.

6. What is spousal support (alimony), and can it be waived in a premarital or post-marital agreement?

Spousal support, also known as alimony, is financial support paid by one spouse to the other following a divorce or legal separation. Texas law generally allows for spousal support under limited circumstances, such as if one spouse cannot meet their minimum reasonable needs due to physical or mental disabilities, or if the marriage lasted for 10 years or more and the spouse seeking support cannot support themselves.

In a premarital or post-marital agreement, spouses can waive the right to spousal support or set the terms of support (including the amount and duration) in the event of divorce. For example, one spouse may agree to waive spousal support altogether, or they may agree to a specific amount of support for a set period of time. These provisions must be clearly outlined in the agreement.

However, Texas courts may not enforce a spousal support waiver if it is found to be unfair or unconscionable at the time of divorce. This is especially true if one spouse is left in a dire financial situation after the divorce.

7. What if I have children from a previous relationship? Can a premarital or post-marital agreement protect their inheritance rights?

Yes, premarital and post-marital agreements can address the inheritance rights of children from previous relationships. In Texas, separate property—property acquired before marriage or through inheritance—can be protected in a premarital or post-marital agreement to ensure that children from prior relationships inherit those assets.

For example, if one spouse has children from a previous marriage and wishes to ensure that certain property (e.g., family heirlooms, business assets, real estate) passes to those children upon their death, this can be specified in the agreement. Without such an agreement, the property may be subject to division between the spouses in the event of divorce, or the surviving spouse may have rights to it upon the death of the other.

A well-drafted agreement can clearly define the separate property and outline inheritance plans, providing security for children from previous marriages and avoiding potential conflicts.

8. Can we include provisions for child custody or child support in a premarital or post-marital agreement?

No, Texas law does not permit premarital or post-marital agreements to dictate child custody or child support arrangements. These matters must be addressed separately, based on the best interests of the child, and they cannot be predetermined in a marital agreement.

While spouses can include language about the division of financial responsibilities related to children (such as who will be responsible for paying certain expenses), any provision that attempts to directly address custody or child support will likely be unenforceable in court. The court will always have the final say in child custody and support matters, regardless of the terms set forth in the agreement.

9. What should we do to ensure that our premarital or post-marital agreement is legally valid?

To ensure the validity of your premarital or post-marital agreement under Texas law, you should follow these key steps:

• Complete financial disclosure: Both parties must provide full and fair financial disclosures of assets, debts, and income.
• Written agreement: The agreement must be in writing and signed by both parties.
• Voluntary execution: Both parties must sign the agreement willingly and without duress or coercion.
• Independent legal counsel: It’s advisable for each party to seek independent legal representation to avoid any potential claims of unfairness or lack of understanding.
• Avoid unconscionable terms: The agreement should be fair to both parties and not heavily favor one over the other, as unconscionable terms may be unenforceable.

Consulting an experienced family law attorney throughout the process will ensure that the agreement is legally sound, properly executed, and fully in compliance with Texas law.

10. Can we create a premarital or post-marital agreement without involving lawyers?

While it is technically possible to create a premarital or post-marital agreement without legal counsel, it is strongly discouraged. Texas law requires full financial disclosure, and failure to provide complete transparency can result in the invalidation of the agreement. In addition, the language used in these agreements is often complex, and a legal professional can ensure that the terms are enforceable, fair, and comply with Texas law.

Having each party seek independent legal advice is essential to ensure that both spouses understand the legal implications of the agreement and are protected from potential future disputes.

Contact Our Dallas-Fort Worth Lawyers Today

By addressing these common questions, we hope to provide clarity around premarital and post-marital agreements and their role in protecting your financial and legal interests. If you have any further questions or would like assistance in drafting or reviewing an agreement, we encourage you to contact our experienced Texas family law attorneys. We are here to help guide you through the process with expertise and care. Our law firm represents clients throughout the entire Dallas-Fort Worth area, including Dallas County, Collin County, Tarrant County, Rockwall County, and Hunt County.