Last Updated on September 26, 2022 by Benson Varghese
Most of us have heard of prenuptial agreements, but what about postnuptial agreements? In Texas, a postnuptial agreement works similarly to a prenuptial agreement, but with one big difference: A postnuptial agreement is signed after a couple is married. A prenup is signed before the marriage.
So what exactly is a postnuptial agreement and why might a couple want one during their marriage? In this article, our family law attorneys explain Texas postnupital agreements, including what is required in such an agreement, and why it might be right for you and your spouse.
What is a Texas postnuptial agreement?
A Texas postnuptial agreement – known in the Texas Family Code as a marital property agreement – is a legal contract created by a married couple detailing how finances, property, and assets will be divided in the event of divorce or the death of a spouse.
Like a prenup, a postnup must be voluntary, in writing, and signed by both spouses. It’s important to point out that child support and child custody clauses are not included in Texas postnuptial agreements.
It’s also important to note that Texas courts can rule a postnuptial agreement unenforceable if a judge finds any of the details unfair, unconscionable, or illegal.
What is the benefit of a postnuptial agreement?
Texas is a community property state, which means property acquired during a marriage is typically equally divided between the two spouses upon divorce. A postnup agreement, however, leaves decisions about the division of property and finances up to the spouses who voluntarily enter into the contract during the marriage.
While postnups might not sound like an ideal romantic contract between a couple, agreeing on important financial aspects of your union could ultimately lead to better understanding and communication in the marriage. A postnup could ease financial concerns and give you and your spouse more time to devote to other marital issues.
Postnuptial agreements can be beneficial because, in theory, you and your spouse are agreeing to terms when you’re still cooperating and not making important decisions during the tension of a divorce.
Why do couples seek Texas postnuptial agreements?
The reasons couples seek postnuptial contracts can be varied. In many cases, a postnuptial agreement helps expedite the divorce process and lessen lawyer and court interaction and fees should the marriage dissolve down the road.
In general, a postnup clarifies the management and division of financial terms in a marriage.
For example, if the couple chooses to have one spouse stop working to stay home for the children, then the stay-at-home spouse may feel a postnuptial agreement is necessary to provide future financial stability in the event of divorce. Leaving the workforce to take care of children at home could leave the spouse struggling to reclaim a similar rate of their previous income should they have to re-enter the workplace in the future. A post-nup contract could help make up for that disparity.
Postnups can also be used to protect the inheritance rights of children and grandchildren from another marriage and can be used as protection against one spouse paying excessive spousal support in the event of a divorce.
A spouse could also use a postnuptial agreement to protect against incurring the other spouse’s debt.
Couples may also decide a postnuptial agreement is wise to protect a family business or significant family property from being subject to division in case of divorce or death.
With the surge in social media, some couples are also choosing postnuptial agreements to prevent a partner from disparaging their spouse online. A spouse could include a clause in a postnup that outlines what is acceptable on social media forums, including negative commentary or unflattering photos.
Texas courts urge couples to be as specific as necessary when drafting a Texas postnuptial agreement.
What does Texas require for postnuptial agreements?
Valid postnuptial agreements must be in writing and signed by both parties. Both spouses must fully disclose all assets and debts. They both need to be legally capable of entering the agreement, and both must enter the agreement voluntarily. A judge could invalidate the agreement if they find it was entered under fraud or duress.
It’s important to have an experienced attorney guiding you through the postnuptial agreement process. If the agreement isn’t in compliance with specific criteria, the court could declare it invalid.
Why are Texas postnuptial agreements growing in popularity?
Forethought: Couples hope their marriage lasts, but pragmatically speaking, divorce is possible. Making important financial decisions in a marriage is often much easier when the couple is on good terms. A good divorce attorney can smoothly facilitate a Texas postnuptial agreement that both parties are happy with before any acrimony hits the union. Without the stress of a divorce, a couple’s assets can be divided fairly.
Financial interests: Couples with businesses, large investments, or significant assets often seek postnuptial agreements to help cleanly divide the assets ahead of time in the event of divorce or death. This could include income, funds from a retirement account, and marital debt.
No prenup: If the couple avoided agreeing to a prenuptial agreement before marriage, a postnup is a good option to tidy up financial obligations and responsibilities during a marriage or in the event of a divorce or death. A postnup contract can also be used to update an existing prenuptial agreement.
Should I seek a Texas postnuptial agreement?
Even if a postnuptial agreement didn’t seem necessary early on in your marriage, it’s possible life events or actions of your spouse could alter your needs. Here are some signs that a postnuptial agreement might be necessary:
* Your spouse accumulates debts in the form of shopping or gambling addictions;
* You’re undergoing couples therapy or marriage counseling;
* The trust in your relationship has been breached;
* A spouse starts a new business;
* A spouse receives a significant inheritance;
* A spouse is considering relinquishing their career to stay home to care for children;
* A spouse buys a luxury home or makes a substantial purchase.
Do I need an attorney for a Texas postnuptial agreement?
In short, yes. Retaining an experienced family attorney is highly advisable when entering a Texas postnuptial agreement contract with your spouse. In fact, both parties should be represented by attorneys.
An attorney will make sure the agreement is fair, and the paperwork is filed correctly. Legal counsel will also guide you towards specific provisions that are in your best financial interest. A family lawyer will ensure that both your and your spouse’s assets and debts are thoroughly vetted. This is important because courts can rule a postnup agreement is invalid if financial records aren’t accurate in the contract.
Filing a postnuptial agreement form online and forgoing the counsel of an attorney is a perilous pursuit. The smallest error could void the contract at considerable financial costs to you.
Need a postnuptial agreement? Contact Varghese Summersett Family Law Group.
If you’re in Tarrant County and seeking a postnuptial agreement, please call Varghese Summersett Family Law Group to set up a consultation with an experienced family law attorney. Our team includes seasoned family lawyers who can guide you through the process and will work to make sure your best interests are the focus and that the financial contract is fair and valid. Call us at 817-900-3220.