Divorces are some of the most contentious and often emotional court proceedings, and it is not uncommon to see headlines about nasty divorces and bitter spouses fighting over property and money during a divorce. However, one of the most effective ways to avoid being in one of these fierce divorce proceedings actually begins even before the marriage begins, by drafting something known as a prenuptial agreement. You are probably familiar with these legal instruments also from headlines, as it is very common to hear of massive prenuptial agreements between celebrities. However, no matter how much money you have or how much property you own, a prenuptial agreement is a good idea for anyone who is considering getting married.
If you are considering marriage and would like to talk about creating a prenuptial agreement to protect your assets in the event of a divorce, one of our attorneys is ready to help answer your questions and explain how a prenuptial agreement may be beneficial to you. To set up a confidential legal consultation about your family law matter, call the Queenan Law Firm at (817) 476-1797.
What is a Prenuptial Agreement?
You are probably familiar with what a prenuptial agreement is in the basic sense, however, a prenuptial agreement is a contract that is made between prospective spouses in contemplation of marriage, that is to become effective upon their marriage. When a couple decides that they would like to get married, they can use a prenuptial agreement in regards to the following:
- the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- the modification or elimination of spousal support;
- the making of a will, trust, or another arrangement to carry out the provisions of the agreement;
- the ownerships rights in and disposition of the death benefit from a life insurance policy;
- the choice of law governing the construction of the agreement; and
- any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
In the event that a marriage ends in divorce, the courts in Texas will look at all earnings of the spouses and all property that is acquired by the spouses during the course of the marriage as community property. Property that is considered community property is, therefore, subject to distribution between the spouses upon death or divorce. The judge in a divorce case is obligated to weigh all the facts and devise a “just and right” division of the assets and debts. Needless to say, what party views as a “fair” allocation of the property may not correspond at all with the judge’s perspective or that of the other party.
What do you need to have a valid prenuptial agreement?
If you and your spouse are contemplating marriage and are considering creating a prenuptial agreement, it needs to be more formal than you sitting down over a cup of coffee and deciding what property will be kept separate and what property will be divided in the event that you ever divorce. The Texas Family Code establishes some requirements for an effective prenuptial agreement. Under the Texas Family Code an effective prenuptial agreement will be:
- In writing
- Executed before the parties get married
- Fully disclose their assets and liabilities
- Be reviewed by independent attorneys
- Entered into voluntarily
All of these factors need to be in place for there to be a valid and enforceable prenuptial agreement. One of the most important elements of the above list is that the agreement must be in writing. Many people believe that because a prenuptial agreement is essentially a contract that it can be oral or verbal. However, while oral or verbal contracts may be enforceable in other areas, prenuptial agreements are an exception to the rule and must be in writing. However, Texas does not go as far as some other states which require that a prenuptial agreement is notarized, rather simply having a writing is sufficient to satisfy the writing requirement.
What can make a Prenuptial Agreement Unenforceable?
In addition to the requirements to establish an effective prenuptial agreement, there are also events and things that can set aside a prenuptial agreement. For example, if one side was not represented by an attorney, this may be the basis for having a prenuptial agreement set aside or found not to be enforceable. It is unethical for an attorney to serve on both sides of a prenuptial agreement. This stems from an attorney’s ethical duty to zealously represent their client. Since a prenuptial agreement will only be examined and utilized when the parties divorce or when one spouse dies. This means that a prenuptial agreement remains largely silent until the parties are at odds with each other, therefore it is crucial that independent attorneys review a prenuptial agreement.
In addition, a prenuptial agreement can be set aside if there is overreaching meaning that the prenuptial agreement attempts to address events and circumstances that are beyond the scope of a prenuptial agreement. Other events that can set aside a prenuptial agreement can include fraud and duress. However, while these events and circumstances may set aside a prenuptial agreement, the burden of proof will be on the person who is trying to set aside the prenuptial agreement.
Have Questions and Need a Fort Worth, Texas Prenuptial Agreement Lawyer?
To set up a legal consultation about drafting, enforcing, or modifying a prenuptial agreement, call the Queenan Law Firm at (817) 476-1797. With more than 20 years of legal experience successfully representing clients throughout Texas, our attorneys are always eager to put our knowledge and skill to work for you.