Premarital and Postmarital Agreement Lawyers
Premarital and Postmarital Agreements Austin, Texas
The state of Texas is a community property state and that means that most, if not all, property and debts that are acquired during a marriage are owned equally, or 50/50, by both spouses. Community property is defined as the assets and debts that are held in common by a husband and wife during the marriage that will be divided in equal shares upon divorce under the laws of community property. There are exclusions available that apply to gifts and inheritances, and it is possible to have a division of property other than a 50/50 split, but that requires either a premarital or postmarital agreement identifying what the agreed upon division of property will be.
What is a Premarital Agreement?
A premarital agreement is a legal contract that is entered into by two people prior to their marriage. There are no rules, and no right or wrong, when it comes to a premarital agreement other it must be entered into voluntarily and it must be fair. This is known as the doctrine of “voluntary and fair”. A premarital agreement allows couples to designate how their community property will be divided should the marriage happen to end in divorce. Premarital agreements will often have common elements in them including:
- An accounting of all of the assets and debts that each spouse brings into the marriage.
- An agreement that no community property shall be created during the marriage.
- An agreement that each spouse will own all income and assets that he or she individually acquires during the marriage.
- A provision that if the marriage ends in divorce there will be no community property to divide (barring any exceptions spelled out in the agreement).
A postmarital agreement is very similar to a premarital agreement except it is intended to segregate the assets and debts acquired after the marriage ceremony. A postmarital agreement is often referred to as a partition because the agreement seeks to partition all of the assets and debts into two separate and distinct estates – one for each spouse. These agreements will often provide for the division of the assets and debts that each spouse shall receive upon death or dissolution of the marriage. Just like a premarital agreement, there are no rules, right or wrong, when it comes to the division or partition of the marital property other than the agreement must be voluntary and fair.
What is Voluntary and Fair?
Entering a premarital or a postmarital agreement is a serious matter and should never be entered into prior to exploring the agreement with a qualified attorney. Premarital and postmarital agreements are legally enforceable under Texas law, and while there are no set rules or formulas for the division of marital property, it must be “voluntary and fair”. To conform to the laws governing what is “voluntary and fair”, an agreement must include at least one of the following criteria to be legally enforceable in a court of law:
- Each party must be given a fair and reasonable disclosure of the other party’s property.
- Each party must sign a waiver of such disclosure.
- Each party must have had adequate knowledge of the property or financial obligations of the other party.