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Austin Texas Family Law Blog

Prenuptial agreements can help prevent conflicts in marriage

Whenever a couple decides to get married, it is wise for them to at least consider a prenuptial agreement. Although some couples may have negative feelings towards these agreements, they are typically well worth the time and effort to create them. Not only does a prenuptial agreement, or prenup, protect both spouses from an unnecessarily complicated and destructive divorce if the marriage fails, it can also help couples deal with difficult issues before they become problems that threaten the marriage.

Consider how common it is for virtually every couple to disagree about finances. If a couple creates a prenup, then they have an opportunity to discuss their financial expectations or fears with each other before the marriage even begins. Some couples choose to avoid this conversation until it causes complications, which is always dangerous.

What is not considered marital property in Texas?

Divorce in Texas, like most things in the Lone Star state, is a little different from divorce in other states. Here, courts require that all marital property owned by a couple who choose to divorce must be split evenly, often making the process of dividing assets and liabilities complicated and lengthy. While other states allow for a bit more flexibility in property division, Texas-style divorce has a flavor all its own.

Because of this, it is very important to understand what does not qualify as marital property before you begin your divorce negotiations. If you don't, you may end up bargaining with chips that you don't have to put on the table at all.

Can you file for an uncontested divorce?

Many marriages come to an end, but not always in a destructive or financially draining manner. Some couples realize that their relationships are simply not built to last. They decide to end the marriage as quickly as possible. Those who do not have complex assets or custody issues may be able to file for an uncontested divorce, which is typically less costly and finalizes more quickly.

You may be able to get an uncontested divorce, if both you and your spouse agree that you want to split amicably, and if you do not have complicated financial or parenting issues to resolve. In very broad strokes, there are fewer requirements that couples must meet to obtain an uncontested divorce, meaning that there are fewer opportunities for conflict prolonging the process.

Can you create a flexible prenuptial agreement?

Prenuptial agreements are a great way to establish expectations and responsibilities in a marriage and to keep certain property separate, simplifying matters if a marriage does not last. Unfortunately, enjoying the protections that a prenuptial agreement offers usually means locking in the terms of the agreement before the marriage even begins, which can prove difficult to navigate.

Some couples want to enjoy the benefits of a prenuptial agreement, but also wish to maintain flexibility in the terms, assuming that their individual preferences and priorities may change over time. For instance, a couple might consider a fair division of assets if the marriage lasts for only a couple years or if it lasts for several decades. A well-crafted prenuptial agreement addresses these nuances and makes room for changes.

Have you appointed a legal guardian for your child?

If you're a parent, you know that you have a serious responsibility to create a safe, healthy environment for your child. This means spending time considering some potentially unpleasant possibilities, in order to keep your family secure if the unthinkable happens.

Unfortunately, many parents pass away or become incapacitated each year without ever designating another adult as their child's legal guardian. For many parents, the thought of leaving their children is difficult. They may hope that simply ignoring this issue will be all right in the long run. If they are lucky, they may not ever need guardianship for a child, but this is a risky approach.

Can parents determine their own custody arrangements?

When parents choose to raise a child separately, it is rarely easy to figure out how each parent will share the responsibilities and privileges of parenting. If the couple never marries, they may work out an informal arrangement between themselves to determine how to share parenting time (although this is typically unwise), but if the couple divorces, they must reach a custody agreement approved by a Texas court. If they cannot reach an agreement, the court will determine this arrangement for them.

Of course, courts rarely have the insight and understanding necessary to make the best decisions for both the parents and the child. It is almost always better for parents to work out a fair agreement together. For the most part, courts prefer to give parents the opportunity to build their own custody arrangements before stepping in and handing down a legally binding custody order.

Are you considering emancipation as a minor?

Many young people understand the necessity of taking responsibility for themselves and their own well-being before they turn 18, which is the legal age of adulthood in most circumstances. Because of this, the law provides a process for living as a legal adult before reaching the age of majority — emancipation.

If you or someone you love believes that it is time to get emancipated from parents or legal guardians, it is important to have a viable strategy in place that will allow you to navigate the process effectively and protect your rights along the way. Courts weigh each request for emancipation individually, so it is important to understand the issues that the court may evaluate.

Can a prenuptial agreement legally include child custody terms?

A prenuptial agreement is something every couple should consider as they approach their wedding day. A carefully worded prenup can offer a great deal of relief to spouses who use it correctly, protecting one from the other's debts or outlining each person's expectations within the marriage. However, some prenups include terms that the law does not support or does not allow -- such as terms surrounding child custody.

Courts do not allow parents to include child custody matters in a prenup for two practical reasons. First, the court is ultimately the deciding party when it comes to child custody disputes. Parents are always encouraged to work together to create an acceptable custody plan that places the needs and interests of the child first. However, courts retain the right to determine what is in the child's best interests if parents cannot offer a good solution.

Use a prenuptial agreement to strengthen your marriage

For many generations, prenuptial agreements carried a certain stigma in the public's view, often seeming like the kind of thing that old, rich families used to keep their wealth protected in case a son or daughter married someone without means of their own. While this is true to an extent, prenups are not only for the rich and powerful. They are also useful for any couple that marries, even if they never divorce.

With a clear understanding of exactly what a prenup offers, many couples now use them to strengthen their marriages rather than create an easy escape hatch if the union sours. If you are approaching marriage, you should create a prenup, for your sake and for the sake of the person you wish to spend your life with.

Understanding how community property laws work

No matter where a divorce occurs, the process is rarely simple. However, for those who live in Texas and other states with community property laws, divorce can prove a bit more complicated than spouses expect.

Community property laws require spouses to split all marital property equally, meaning that each spouse leaves the marriage with one-half of the value of the couple's assets and liabilities. Other states that do not have community property laws allow spouses to reach an "equitable" property division agreement, where each party and the court agrees that the division of property is fair, but not necessarily equal.

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