What Can You Include in a Prenup/Post Marital Agreement?
Customizing Premarital & Post-Marital Agreements to Fit Your Needs
A premarital agreement (also known as a prenuptial agreement) and a post-marital agreement (or postnuptial agreement) are highly customizable legal documents that allow couples to address their financial and property rights in the event of divorce, separation, or death. In Texas, these agreements can be tailored to meet the unique needs of each couple, ensuring that the terms reflect their specific circumstances, values, and goals. Whether you are entering into a marriage with significant assets, managing a business, or seeking to define financial expectations, customizing your agreement is an essential step in securing your future and protecting your interests.
This article discusses how premarital and post-marital agreements can be customized to suit your individual needs and how they can be modified over time to reflect changing circumstances.
Our Dallas-Fort Worth family law 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 prenup and post nuptial law firm for your initial consultation.
1. Tailoring Agreements to Your Individual Circumstances
One of the key benefits of premarital/prenup and post-marital agreements is the ability to customize them based on the specific needs and goals of the couple. Texas law provides a great deal of flexibility when it comes to structuring these agreements, allowing spouses to define their property rights, financial obligations, and spousal support arrangements in a way that makes sense for their particular situation.
Addressing Property Division Based on Assets and Liabilities
Every couple’s financial situation is different. Some couples may have substantial individual assets, such as real estate, investments, or businesses, while others may have minimal property or significant debt. Premarital and post-marital agreements allow couples to tailor the division of property in a manner that reflects their specific needs and preferences.
For instance, if one spouse owns a business prior to marriage, the agreement can specify that the business will remain separate property and not be subject to division in the event of divorce. Alternatively, if one spouse has significant debt, the agreement can outline that the spouse with the debt will retain responsibility for it, even if the debt was incurred during the marriage.
In a premarital agreement, the parties may agree that any property acquired during the marriage will remain separate property, provided it is explicitly stated in the agreement. Conversely, if both parties intend to share assets and liabilities equally, the agreement can reflect a more standard community property arrangement, which is the default under Texas Family Code Section 3.002.
Defining Spousal Support Provisions According to Needs
Spousal support provisions can also be customized in a premarital or post-marital agreement. Under Texas Family Code Section 8.051, spousal support is generally awarded only in limited circumstances, such as when a spouse cannot meet their minimum reasonable needs due to physical or mental disabilities or when the marriage lasted for ten years or more.
However, couples can customize the terms of spousal support in advance. For instance, if one spouse is seeking assurance that they will not be financially dependent on the other in the event of divorce, the agreement may stipulate that no spousal support will be awarded. On the other hand, if one spouse anticipates needing support following a lengthy marriage, the agreement can specify the amount and duration of support, potentially beyond the limits established by Texas law.
Addressing Blended Families and Inherited Property
Premarital and post-marital agreements are particularly useful for individuals entering marriage with children from previous relationships or for couples who wish to protect inherited assets. In blended families, one spouse may wish to ensure that certain property will pass to children from a prior marriage, rather than being divided between the spouses in a divorce.
Similarly, inherited property may need protection. Under Texas Family Code Section 3.001, property acquired before the marriage is generally considered separate property. However, a premarital or post-marital agreement can explicitly specify that any property acquired during the marriage, such as an inheritance, will remain separate property, even if it is commingled with other assets.
By customizing the agreement, couples can create a structure that protects children’s inheritance rights while also addressing the financial needs of both spouses.
2. Modifying Agreements Over Time
While a premarital agreement is executed before marriage and a post-marital agreement is executed during the marriage, both types of agreements are flexible and can be modified over time to accommodate changes in circumstances. Life is dynamic, and as your relationship and financial situation evolve, so too should your agreement.
Changing Financial Circumstances
Financial circumstances often change throughout the course of a marriage. Couples may acquire significant assets, such as real estate or investments, start a business, or experience a dramatic change in income. These changes may warrant a modification to an existing premarital or post-marital agreement to ensure that it continues to reflect the couple’s current financial situation.
Under Texas Family Code Section 4.003, spouses have the ability to modify or revoke their agreement at any time, provided that both parties mutually agree to the change in writing. For example, if one spouse inherits a substantial sum of money after marriage, the couple might choose to amend their agreement to ensure that the inheritance remains separate property rather than becoming community property.
Changes in Family Dynamics
Changes in family dynamics—such as the birth of children, the addition of stepchildren, or the need for long-term care—may also prompt couples to modify their agreement. For instance, a couple may want to revise their property division or spousal support terms in the event of divorce if they now have children or if one spouse has become a stay-at-home parent.
In cases of blended families, modifications can be made to reflect the evolving priorities of each spouse, such as ensuring that children from previous marriages are provided for or addressing concerns about how family assets should be allocated in the event of a death or divorce.
Post-Divorce Modifications
Even after a divorce, post-marital agreements can be modified to reflect new realities. For example, after a divorce, either spouse may wish to alter spousal support provisions based on changes in income or other financial factors. These modifications must be agreed upon by both parties and incorporated into a new legal document. Texas Family Code Section 8.054 provides specific guidelines on the enforcement of spousal support orders, but an agreement between the parties can still provide flexibility in addressing future changes.
3. Legal Considerations for Customization and Modification
While customizing and modifying premarital and post-marital agreements is encouraged, it is important to follow the legal requirements set forth in the Texas Family Code to ensure that the agreement remains enforceable.
Written Agreements and Legal Formalities
Under Texas Family Code Section 4.002, premarital and post-marital agreements must be in writing to be enforceable. Oral agreements or informal arrangements will not have any legal standing, even if both spouses agree to the terms. Additionally, for a modification to be valid, it must be in writing and signed by both parties. This ensures that there is clear documentation of the changes and that the modified agreement will be enforceable in court.
Independent Legal Counsel
To avoid any potential disputes about the enforceability of the agreement, it is highly recommended that both parties seek independent legal counsel. Having separate attorneys ensures that both spouses understand their rights and obligations and that the agreement is executed voluntarily and with full disclosure of financial information. This is especially important in Texas, where courts may invalidate an agreement if there is evidence of coercion or lack of full financial disclosure under Texas Family Code Section 4.003.
Conclusion
Premarital and post-marital agreements are powerful tools for customizing the financial and property arrangements between spouses, allowing them to create agreements that reflect their unique circumstances and future goals. These agreements offer flexibility, enabling couples to address their specific needs in areas such as property division, spousal support, and debt responsibility. Additionally, these agreements can be modified over time to adapt to changing financial conditions or life events, ensuring that they remain relevant and effective throughout the marriage.
To ensure that your prenup or post marital agreement is valid, enforceable, and properly tailored to your needs, it is important to work with an experienced Dallas-Fort Worth prenuptial agreement attorney who can guide you through the process of drafting, customizing, and modifying your agreement in compliance with Texas law.