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PEACE OF MIND OF A MARITAL AGREEMENT BY A TEXAS ATTORNEY VIA PHONE & EMAIL

FAQs

  1. Are Marital Agreements Enforced in Texas?
    Absolutely. The Texas Family Code and court opinions clearly provide that prenuptial agreements and post-marital partition agreements will be enforced so long as they are not unconscionable, were executed voluntarily, and each spouse provided complete disclosure of his or her assets or signed a waiver of disclosure or had adequate knowledge of the other spouse’s property and debts. The Texas Supreme Court has held on several occasions that marital agreements will be enforced.

  2. What Are the Benefits of a Prenup?
    There are numerous benefits to a prenup. Texas law provides that a Judge shall divide a community estate “in a manner that the court deems just and right having due regard for the rights of each party and any children of the marriage.” By executing a prenuptial agreement you take control of the division of your community estate. You can specify that each spouse receives 50% of the community estate, that each keeps all that he or she has acquired, or anything in between. The importance is that you each maintain control.

    Any assets owned by either party prior to marriage cannot be divided in a divorce, but the party claiming to have owned an asset prior to marriage must prove it by clear and convincing evidence. A prenup can be a written record of what each spouse owned prior to marriage.

    In the event of the death of either spouse, a prenup can be a means of ensuring that either one’s children avoid arguments about the right of the surviving spouse to remain in the house, or whether he or she must vacate.

    A divorce can be as stressful as losing a spouse to death. A prenuptial agreement can greatly reduce the stress of divorce if that becomes inevitable. The process becomes a great deal simpler. A divorce can also cost untold thousands of dollars. A prenup can substantially reduce those financial costs.

    If you are interested in a prenup please click the tab to your left for the Standard Prenup Package to find out how easily and reasonably you can get the peace of mind of a prenuptial agreement.

  3. What Is a Partition Agreement?
    A partition agreement divides, or partitions, a married couple’s community estate into two separate estates. It is sometimes called a post-nuptial or post-marital agreement and is similar to a prenuptial agreement, except that it is executed by a married couple. There is no time limit on how long a couple can be married before executing a partition agreement. It can be suitable for a recently married couple or for someone in a marriage of many years. A partition agreement has the same effect as a prenuptial agreement. It creates two separate estates, and a spouse’s separate property cannot be awarded by a judge when a marriage ends. In many ways, it operates, has the same effect as, and can be modified the same way, as a prenuptial agreement.

    If you are interested in a Partition Agreement please click on the tab to your left to learn how easily and reasonably you can convert your community estate into two separate estates, and get the peace of mind that comes with it.

  4. After it Is Signed Can a Prenup or Partition Agreement Be Modified?
    Yes. The standard prenup contains a term providing for modification in writing at any time so long as both spouses agree. However, if one spouse does not agree to modify the document it remains in effect. A custom prenup can be drafted to contain any provision for modification agreeable to the parties. Normally, the draft states that it can be modified in writing signed by both spouses.

  5. Doesn’t Texas Law Award the Community Estate 50/50 Without a Prenup or Partition?
    No. Texas law does not provide anywhere for a 50/50 division. Section 7.001 of the Texas Family Code states:

    "In a decree of divorce or annulment, the court shall divide the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." TX Fam Code Sec. 7.001.


    There are many factors taken into account by a court when it divides a community estate, and there is no presumption in favor of 50/50 or anything else.

  6. What Are the Limitations of a Prenup or Partition Agreement?
    A prenuptial or partition agreement cannot provide terms regarding children born during the marriage. Any decision about children will be made based on their best interest at the time that the decision is made. Other than that, there are no limits to the agreement that you can make about your property. The standard prenup available on this site provides that each spouse keeps all in his or her name, all that he or she has before marriage, and all that he or she earns or acquires during the marriage.

  7. What about Children Born During the Marriage?
    Decisions regarding the best interests of children must be made based on the circumstances existing at the time that the decision is made. Because those circumstances cannot be predicted in advance, a prenup cannot provide for children. It is possible to include a statement about the parties’ intent in the event that a decision must be made about children, but it’s value is minimal.

  8. What about the Children of Either Spouse Born Prior to Marriage?
    A prenup can provide that your children will receive certain assets in the event of death so long as it is combined with a competently written will. Texas law provides certain benefits to a surviving spouse which can be modified with a prenup agreement. First, by preventing the creation of community property your entire estate remains separate and is subject to the terms of your will. Secondly, a surviving spouse has certain rights to occupy the residence to the exclusion of the children of the deceased spouse. This can be modified. With a prenup you can also provide that your spouse is well taken care of in the event of your death.

  9. Does a Prenup Have Any Effect on Our Estate If a Spouse Dies?
    A prenup can be drafted to provide for a surviving spouse in the event of the other’s death. It should be combined with a competently drafted will. It can provide that all of your assets remain your separate property but still provide that your spouse will receive a portion of those assets, or none at all, depending on what you choose when its written. Without a prenup, Texas law provides for the division of your community estate, subject to your will.

  10. How Do I Bring up the Topic of a Prenup with My Fiancé?
    There are several ways to do this. First, have a clear understanding of the reasons for your interest in a prenup and the benefits to your particular situation. Do you want to provide that each of you will keep 100% of your separate estates and all acquired by each of you independently during marriage, do you want to ensure a 50/50 division, or something in between? You may be interested in allaying any fears or concerns of your adult children. You may want to provide for the future of each spouse’s minor children born before the marriage. If you both have assets, it may be smart to confirm that they are kept separate for financial reasons.

    A prenup can be looked at like an insurance policy. You hope you will never need your homeowner’s policy, but it’s comforting to know its there. All marriages go through difficult periods. At such times, it can be helpful to know that you don’t have to worry about your retirement, finances, etc.

    When you know why a prenup is appropriate for your situation and have some ideas about what you would like to include in it, then sit with your fiancé and discuss it calmly and maturely. For many couples it takes several conversations before they are finally comfortable discussing the details.

  11. How Do I Speak to My Spouse about a Partition Agreement?
    First, have a clear understanding of your reasons for wanting to partition your community estate and the benefits and disadvantages of doing so. Usually, there will have been some precipitating event or series of events that have brought a couple to this situation so it should not be a complete surprise to your spouse. If you are in marriage counseling consider bringing it up during a counseling session. If you and your spouse have been discussing difficult marital issues, you can mention it as a step toward resolving those issues.

    It can be beneficial to not have to worry about your financial future at a time of marital stress. After the partition agreement has been signed you will each know what the future holds if the marriage ends. That security may allow you more freedom to work creatively on saving your marriage, rather than worrying about what could happen if the marriage ends and whether you should strategically take the first step toward a divorce.

    When you fully understand why a partition agreement might be appropriate, choose the best time and place to speak to your spouse in a calm and mature manner. It may take several conversations before you can actually discuss the details. Discuss each spouse’s concerns about the future, what his and her true interests and fears are, and the best way to partition the community estate to try to address each of those concerns. Depending on the complexity of the estate you may need to seek the assistance of an attorney in resolving the details.

  12. I Believe in Marriage for Life, Why Do I Need a Prenup?
    Unfortunately, there is no easy answer to that question. Nobody ever enters into a “lease marriage.” It is always intended for life. Yet, a huge number of marriages end by divorce. Some say 50% of all marriages end that way, others say the number is higher. It varies by the ages of the spouses, whether they have been married before, etc. The situation can be analogized to insurance. You don’t expect your house to be destroyed in a storm but it can happen. When the storm is happening its nice to know that you have insurance. Similarly, you don’t expect your marriage to end, but it will go through stormy periods. At such times, its nice to know that you do not have the added stress of wondering what your financial future will be if the marriage does not weather the storm.

    Keep in mind that it takes two to make a marriage. No matter how committed you remain, if your spouse decides to make a change the law gives you no power to stop that change. At that point a Judge will make what he or she believes is a just and right division of your community estate, unless you have a prenuptial agreement.

    You and your spouse will probably live to be over 80 years old. It is impossible to predict how circumstances or people will change over time. If the marriage ends by divorce a prenup can greatly reduce the stress and financial cost in untold ways.

  13. Are Both Parties to a Prenup or Partition Agreement Required to Have a Lawyer?
    No. The law does not impose any such requirement. However, it is considered best practice for both parties to have his and her own lawyer, even if they have already agreed to the terms of the document. For example, if you choose the standard prenup you will receive a standardized document that provides that you each own separately all that you have before marriage and all that you acquire during marriage. There is no negotiation or language revision involved. Nonetheless, it is best to have your spouse bring the document to an attorney for review and consultation before signing. This ensures that he or she understands the document and will make it difficult to later claim that it was not fully understood.

    If either of the estates is substantial, then each fiancé or spouse should have his and her own attorney from the beginning to help with negotiation and/or drafting of the document.

  14. Is a Texas Prenup or Partition Agreement Valid in Other States?
    The agreements available on this site contain language designed to assist other states in putting them into effect if necessary but, ultimately, that depends on the law of the jurisdiction being asked to enforce the agreement. Generally, each state will give effect to an agreement between the spouses but there is no way to guarantee that for each individual state, and certainly not for other countries. If you are considering moving, you should consult a lawyer in the new jurisdiction regarding your will, prenup or partition agreement, and other personal financial planning documents.

  15. How Much Does a Prenup or Partition Agreement Cost?
    This site offers a standard prenup package for $399. That package consists of (1) a prenuptial agreement; (2) forms for listing the assets and debts of each fiancé; (3) 2 waivers of financial disclosure; (4) a post-marital property agreement to be signed shortly after the marriage; (5) a cover letter explaining how to execute and record the documents, and (6) a half hour phone consultation with attorney Brian McNamara after you receive the package to answer any questions.

    The standard prenup provides that all assets owned by a spouse before marriage remain that person's separate property and that all assets acquired during marriage are the separate property of the spouse that acquired them. There are many other provisions and you should read the document very carefully.

    We also offer a standard partition agreement package that divides an existing community estate into two separate estates according to the schedules that the spouses complete. The schedules identify the assets and debts that will be each spouse's separate property and responsibility. The partition agreement, sometimes called a postnuptial agreement, completely divides a community estate into two separate estates. That packet costs $399.

    If you want a prenup that does not completely keep each spouse’s estate separate, or if you would like a more complex custom partition agreement, the fee will vary depending on the complexity of the document. I am available for consultation or to represent you in discussing the details of the prenuptial or postnuptial agreement.

  16. Are There Any Assets That Cannot Be Kept Separate by a Prenup or Partition Agreement?
    No. A properly drafted prenuptial agreement, along with accurate and comprehensive property and debt schedules, can ensure that all of your assets before marriage and everything acquired after marriage, remains your separate property. A partition agreement can do likewise, by dividing the entire community estate into two separate estates.

  17. Can I Protect 100% of My Retirement?
    Yes. A prenup or a partition agreement can designate 100% of a spouse’s retirement benefits as the separate property of that spouse.

  18. What If an Asset Is Accidentally Not Identified on the Prenup?
    Generally, that will not affect the validity or enforceability of the document. The prenup states that any failure to identify an asset does not affect its enforceability and it remains valid. I also include a waiver of financial disclosure that states that each party waives his and her right to complete financial disclosure, just in case something is accidentally not included.

    Keep in mind that it is in each party’s interest to include all of his or her assets. All assets owned prior to marriage are separate property. A prenup serves as a list of the assets of each party in the event that there is ever a disagreement about when an asset was acquired or its value at the time of marriage. A record can be particularly important in the event of a disagreement about the value of an asset at the time of marriage if it changes during the marriage.

  19. What If a Debt Is Not Included in the Prenup?
    That will not affect the validity of the agreement. The disclosure of debts serves primarily to inform each fiancé about the other’s liabilities before marriage. Regardless of disclosure you will not become liable for your fiancé’s debts after you are married unless you affirmatively adopt them by signing a debt instrument. So long as there is no community property being created during the marriage your property will not be used to satisfy your spouse’s debts. A prenup can ensure that no community property is created during the marriage.

  20. Does Cheating or Abuse Invalidate a Prenup or Partition Agreement?
    Not unless the agreement specifically states that it does. The standard prenup and standard partition agreement that we provide does not mention infidelity or abuse. A custom agreement can include such a provision, but the ramifications should be carefully considered. For example, such a requirement could open the parties to litigation if one believes that the other has been unfaithful or alleges abuse. Even such basics as the definitions of infidelity and abuse must be considered, e.g. will inappropriate internet chatting, or the exchange of intimate photographs, be considered infidelity; and does "abuse" require the use of physical force?

  21. Does the Standard Prenup or Partition Package allow us to buy property together?
    Yes. The Standard Prenup & Standard Partition packages both provide that the spouses may purchase property together but are not required to. Any property purchased together will be owned in proportion to the percentage that each spouse contributed to the purchase price. If the respective contributions cannot be determined, then it is owned in equal proportions by each spouse (50/50).

  22. What if I want to give my spouse money or a gift after we’re married with a Prenup or Partition Agreement?
    Both the Standard Prenup & Standard Partition Agreements include provisions that permit either spouse to make a gift to the other. Such a gift can be an item or cash, and can be used to periodically increase a spouse’s separate property, but is never required. A custom agreement can include a specific requirement for transfers of cash at specific intervals or milestones, e.g. 5 or 10 year anniversaries.

  23. Should a Prenup or Partition Agreement be recorded?
    Texas law provides that a marital partition agreement (postnup) can be recorded with the county records. Whether or not it is recorded will have no impact on its enforceability between the spouses. The benefit of recording is that it can limit the ability of a creditor of one spouse to seize the separate assets of the other spouse. Without recording, a creditor could potentially argue that a judgment against one spouse can be satisfied against property that would normally be community property. The Prenup Package available on this site includes a short partition agreement that can be signed immediately after marriage and then recorded. The Package also includes a cover letter outlining how to record the document. If you prefer, we can do that for you.

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