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The Do's and Don'ts of a Prenuptial Agreement in Texas

Taly Thiessen
The Do's and Don'ts of a Prenuptial Agreement in Texas

One of the most uncomfortable things to talk about with your significant other is money. It doesn’t matter whether you’re in New York, Denver or Houston, Texas; a prenuptial agreement is a topic that can suck the air out of any room. Think: what’s mine, what’s yours and what’s really ours. Ugh. The topic can be so awkward and can feel so confrontational that many couples avoid it altogether. But even so, the reality is that a Premarital agreement, also commonly known as a prenuptial agreement, can be a beneficial for all parties. To give you a better grasp of how to navigate this tricky agreement, we have some advice to help you confidently take it face on.

DO: Understand what a Texas prenup does

A prenuptial agreement, legally known as a premarital agreement, is an agreement between two prospective spouses made before marriage, which becomes effective when you and your spouse marry.

Many people have the misconception that a Premarital agreement is a magical get-out-of-jail free card that lets them keep all of their money in the event of a divorce in Texas. That’s not quite how it works. In Texas, a prenup is a contractual means of dividing property before you wed. When you sign a Premarital agreement in our state, you’re only protected from dividing up assets that legally belonged to you prior to your marriage. Also contrary to misconceptions, assets gained as a couple can be protected in a prenup if you both decide what should be changed to separate property. While Texas does not support alimony, the court may require spousal support. Nevertheless, a premarital agreement can ultimately eliminate spousal support altogether.

Child support and other related fees incurred during separation would be required regardless of the prenup agreement. In other words, the only thing a prenup agreement cannot protect are fiscal responsibility to children and contractual obligations that are rendered unconscionable.

DON’T: Decide to do a prenuptial agreement last minute

One of the biggest anxieties surrounding a prenup is knowing how and when to bring it up. The conversation is far from romantic, and no one wants to start a marriage with talks of how it might end. That said, there are plenty of practical reasons that would encourage an individual to initiate a prenuptial agreement discussion, including concerns over the ownership of a business, support/custody of children from a prior marriage, inheritance issues, property ownership and other financial issues. If you know that you’re interested in a prenup, best to bring it up sooner rather than later. Having time to work things through and consider your options will always make for a much smoother experience later.

Additionally, another factor to consider in Texas is the issue of duress with premarital agreements, which prohibits either sides from forcing the latter to sign on their wedding day or to sign in a circumstance that prevents adequate time to research details and consequences. If proven that this is the case, this poor execution may render the whole agreement unenforceable.

DO: Hire separate lawyers for your prenup

Marriage is all about doing things together. But until you officially say “I Do,” it’s important to keep certain things separate. To ensure that things are kept fair and neither person is signing to something they will regret later, each spouse should have their own lawyer when creating and signing a prenup in Texas.

DON’T: Try to do anything shady with your prenup

Hopefully this goes without saying — trying to sneak something in your prenuptial agreement that is illegal or harms your spouse/children is not allowed and can be rendered unenforceable. Prenups in Texas, or any other state, cannot be used to help you escape debt or taxes on previously owned property nor can they be used to preemptively set up unfair alimony or child support. Also, not disclosing all of your assets is one of the main reasons premarital agreements are considered void. Each party must have a fair and reasonable disclosure of all the property and financial obligations of the other before signing.

DO: Hire an experienced family attorney for your marital decisions

If you or your spouse is interested in entering a Texas prenuptial agreement, do not sign or attempt to write one without an attorney. Our resident expert family law attorney can help you craft a Premarital agreement that will work for you and is conducive to your future family. Contact Taly Jacobs at the Thiessen Law Firm to get started today.

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