With many Texas couples making plans for Valentine's Day weddings right about now, we thought this would be a good time to discuss prenuptial agreements. While not the most romantic of wedding preparations, a prenup can help a couple codify just what assets and debts will remain individual and which ones will be considered marital property.
This is particularly important in a community property state like Texas. Under Texas law, any property acquired during the marriage is divided equally in the event of a divorce unless a prenup states otherwise.
Prenups are also important if one or both spouses has a stake in a family property or business that they want to remain in their own family. It can also protect an inheritance -- even one that they haven't received yet. It can even specify that family heirlooms like jewelry and antiques not be divided.
With many people getting married or remarried at a later stage of life, prenups are often used to provide for children from an earlier relationship and to protect estate plans and retirement benefits.
While prenups are used to protect property, they can also help prevent one spouse from being stuck with the other one's debts, both during the marriage and in a divorce. Creditors can take marital property to recover one spouse's debt unless the other spouse's debt liability is limited in a prenup.
There are several issues that cannot be impacted by a prenup. Experienced Texas family law attorneys will advise their clients that such items will not be recognized by a court. Chief among these is anything related to child custody and support. Courts make those decisions based on what is in the child's best interest.
Any provision that can be determined to provide either or both spouses with an incentive to divorce will likely be struck down by a judge. Experienced family law attorneys know how to avoid such provisions.
While some couples like to use their prenups as an opportunity to spell out everything from who will do the household chores to how often they'll take a vacation, those are usually not upheld in court. Prenups should be for financially-based issues only. If you and your spouse want some kind of legal document spelling things like that out, your attorney can advise you on options for doing that. Based on your individual situation, your goals individually and as a couple and what you each want to protect, your family law attorney will guide you through the prenup process.
Source: FindLaw, "What Can and Cannot be Included in Prenuptial Agreements" Jan. 11, 2015