Deciding to enter into marriage with another person is a monumental step in someone’s life and in a couple’s relationship. Most often getting engaged and preparing for your wedding is one of the most joyous times in your life, however, amongst this joy, it is also important to consider what happens if your marriage doesn’t work out the way you planned. That is one of the reasons to consider having a prenuptial agreement. While you may think you will spend your life in wedded bliss, in the event that your marriage doesn’t work out the way you planned, or in the event that your spouse passes away.
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 and What Can it Do?
A prenuptial agreement is simply an agreement between two people who are contemplating marriage that will become effective upon marriage. Prenuptial agreements are essentially contracts that prospective spouses make to address issues that may arise if a spouse dies or the marriage ends in divorce.
Family Code Section 4.003(a) allows parties to a premarital agreement to agree on many things including characterization of property, management, and control of property, how the property will be divided upon divorce or the death of a spouse, spousal support, and others. Parties can decide to keep certain items separate like income from separate properties and still share their earnings as community property. Or they can agree to keep everything separate so that no community estate is created at all.
There are many substantial benefits to taking the time to create a prenuptial agreement. If you do not take the time to create a prenuptial agreement, and your marriage ends in divorce or with the death of your spouse then your marital property can be subject to Texas’s sometimes harsh community property law, which 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.”
What is Marital Property?
Texas is a community property state, which as explained above allows the judge a considerable amount of latitude to divide property at the end of a marriage. Under Texas law all of the property and earnings of both of the individual spouses acquired during the course of the marriage is considered marital property, or as Texas law refers to it as – community property. Some of the most common examples of property that is deemed community property include:
- Income from employment, including all wages, salaries, tips and overtime;
- A house or other real estate purchased during the marriage;
- Vehicles purchased during marriage;
- Individual contributions to pension, 401K or other retirement accounts made from the date of marriage;
- Unemployment compensation and payment for lost wages;
- The balance of checking and savings accounts, regardless of whether the account is single or joint.
Now that you have an understanding of what community or marital property is, it is also important to understand what may not be considered marital property. Separate property is property owned before marriage, or acquired during the marriage as a gift, through inheritance, or as part of a personal injury settlement. The distinction between community property and separate property can be subtle and not always easy to define, however, that is one of the reasons for drafting a prenuptial agreement. A prenuptial agreement when properly drafted can clearly identify what is to be considered separate property, and what is to be considered marital property.
Can a Prenuptial Agreement be Amended?
There are several requirements for a prenuptial agreement to be valid and enforceable. One of these requirements is that the agreement must be in writing and executed before the marriage. However, this leads many to believe that a prenuptial agreement cannot be changed once the parties have entered into a marriage. However, the Texas Family Code allows for a premarital agreement to be amended and changed even after the couple has entered into marriage. Specifically, Texas Family Code provides in Sec. 4.005. AMENDMENT OR REVOCATION, that:
After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
There are many reasons why a prenuptial agreement may be changed or amended. Some couples will decide during the course of their marriage that a piece of property that they initially wanted to keep separate should actually be considered community property. Conversely, a couple may decide that property that they initially delineated as community property should, in fact, be separate property.
Have Questions For a Houston, Texas Prenuptial Agreement Lawyer?
To set up a confidential 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.