Se Habla Espanol   |   Call Today At 214-432-2501

Shemesh Family Law | Law Offices of Amber Shemesh, P.C.
Email

CALL

An Ally In All Your Family Law Matters

Key Components of Premarital and Post-Marital Agreements in Texas

A premarital agreement (commonly referred to as a prenuptial agreement) and a post-marital agreement (also called a postnuptial agreement) serve as essential tools for couples seeking to define their financial arrangements in the event of divorce, separation, or death. These agreements are governed by specific legal requirements outlined in the Texas Family Code, and they provide clarity regarding issues such as property division, debt responsibilities, and spousal support.
In order for a premarital or post-marital agreement to be enforceable under Texas law, certain key components must be addressed. This article will discuss the key elements of these agreements, including financial disclosures, division of property, debt responsibilities, and spousal support provisions.

Our Dallas-Fort Worth family 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. Financial Disclosures

One of the foundational elements of a valid premarital or post-marital agreement is the requirement for full and fair financial disclosure by both parties. Under Texas Family Code Section 4.003, both spouses are required to disclose their financial circumstances fully before executing the agreement. This disclosure is critical to ensure that the agreement is fair and that neither party is disadvantaged or misled by hidden assets or debts.

What Must Be Disclosed?

Financial disclosure must include a complete and accurate account of each spouse’s assets, liabilities, income, and expenses. This includes but is not limited to:

  • Real estate holdings
  • Business interests
  • Bank accounts and retirement funds
  • Debts, including credit card balances, mortgages, and loans
  • Investments, stocks, bonds, and other financial assets

If either party fails to provide full financial disclosure, the agreement may be deemed unenforceable by the court, especially if the lack of disclosure was material and impacted the fairness of the agreement.

Why is Full Disclosure Important?

Full financial disclosure is essential to ensure that both parties make informed decisions regarding the terms of the agreement. Without it, one party may feel misled, and the validity of the agreement could be challenged in court. Transparency is critical to maintaining the agreement’s enforceability under Texas Family Code Section 4.003.

2. Division of Property

In both premarital and post-marital agreements, one of the primary concerns is how property will be divided in the event of a divorce, separation, or death. Texas follows a community property system, meaning that any property acquired during the marriage is generally considered joint or community property, which is subject to division upon divorce. However, through a premarital or post-marital agreement, spouses can modify this default arrangement.

Separate vs. Community Property

Under Texas Family Code Section 3.001, property acquired by either spouse before marriage is considered separate property, and property acquired during the marriage is presumed to be community property. However, a premarital or post-marital agreement can alter these presumptions, allowing spouses to specify which assets will be considered separate property and which will be treated as community property.

For example, a couple may agree in a premarital agreement that an inheritance received by one spouse during the marriage will remain separate property, even though it is acquired while married. Similarly, a post-marital agreement can define how assets acquired during the marriage, such as the purchase of a new home, will be divided in the event of a divorce.

Clauses for Property Division

Premarital and post-marital agreements typically address how property will be divided upon divorce or death. These provisions should specify:

  • Which assets are separate property: Each party’s separate property should be clearly defined to avoid confusion.
  • How community property will be divided: In the absence of an agreement, community property is typically divided 50/50, but the agreement can modify this.
  • Disposition of property upon death: The agreement may include provisions regarding the transfer of property or distribution of assets upon the death of a spouse, which can complement estate planning documents like wills or trusts.

Clear terms regarding property division are essential to minimize conflict and ensure that each party’s expectations are met.

3. Debt Responsibilities

In addition to property, premarital and post-marital agreements also address the allocation of debt responsibilities. In Texas, debts incurred during the marriage are generally considered community debts under Texas Family Code Section 3.201, meaning both spouses are liable for them. However, an agreement can specify how debts will be allocated between the parties in the event of divorce or separation.

How Debt Can Be Divided

A well-drafted agreement can help spouses allocate responsibility for various debts, such as:

  • Credit card debt: One spouse may agree to take responsibility for certain credit card balances accumulated during the marriage.
  • Mortgages and loans: The agreement can define how joint mortgages or personal loans will be paid off or divided upon divorce.
  • Student loans: Debts incurred for education expenses can be addressed, determining whether they will be considered separate or community debts.

For example, if one spouse has significant student loan debt from before the marriage, the agreement may specify that the student loans will remain the separate responsibility of that spouse, despite the debt being incurred during the marriage. This helps ensure that the other spouse is not unfairly burdened by liabilities that were not their own.

Enforcement of Debt Provisions

By outlining how debts will be divided in the event of divorce or separation, premarital and post-marital agreements help prevent disputes over financial obligations. However, it’s important to note that while these agreements can define liability between the spouses, creditors are not bound by the terms of a marital agreement. If both spouses are listed on a loan or mortgage, creditors can still pursue both parties for payment. The agreement can help clarify who will be responsible for repaying the debts, but it does not absolve one spouse of the legal obligation to the creditor.

4. Spousal Support (Alimony) Provisions

One of the most important components of a premarital or post-marital agreement is the inclusion of spousal support or alimony provisions. Spousal support is designed to provide financial assistance to a spouse who may be unable to support themselves after a divorce. In Texas, spousal support is generally only awarded in specific circumstances, as outlined in Texas Family Code Section 8.051, and is subject to limitations.

When is Spousal Support Awarded in Texas?

Texas law allows for spousal support in the following circumstances:

  • The spouse seeking support is unable to earn sufficient income to meet their minimum reasonable needs due to physical or mental disability.
  • The spouse seeking support is the primary caregiver of a child with special needs.
  • The marriage lasted for 10 years or longer, and the spouse seeking support is unable to support themselves through employment.

A premarital or post-marital agreement can address whether one spouse will be entitled to spousal support in the event of divorce. It can define:

  • The amount of spousal support: The agreement can specify how much one spouse will pay to the other.
  • Duration of spousal support: The agreement can set a timeline for how long spousal support will be provided.
  • Conditions for termination: The agreement can specify conditions under which spousal support may be terminated, such as remarriage or cohabitation.

Including spousal support provisions in a premarital or post-marital agreement can provide clarity and security for both parties, particularly in cases where one spouse may be financially dependent on the other.

Conclusion

Premarital and post-marital agreements offer important legal protections for both spouses, providing clear guidelines on property division, debt responsibilities, and spousal support. By addressing these key components—financial disclosures, property division, debt allocation, and spousal support provisions—couples can ensure that their financial expectations are clear and legally enforceable, minimizing the potential for disputes during or after the marriage.

To ensure that these agreements are properly drafted and comply with Texas law, it is essential to consult with an experienced Dallas-Fort Worth divorce attorney. A well-drafted agreement not only provides peace of mind but also helps protect the financial interests of both spouses in the event of a divorce or separation.