Pre- and Post-Marital Agreements

It is common for separate property to be commingled with community property after a couple marries. When a couple gets divorced, the commingling may create significant obstacles when determining the character of various assets. Drafting a pre-marital or post-marital agreement may provide some measure of security to both spouses in the case of a divorce. If you are considering this type of option, the Dallas divorce attorneys at the McClure Law Group may be able to provide sound advice and representation.

Retaining an experienced attorney to draft your pre-marital or post-marital agreement may give you the peace of mind that you have created a legally binding contract. Texas has adopted the Uniform Premarital Agreement Act. A pre-marital agreement must be in writing and signed by both prospective spouses prior to the marriage. No consideration is necessary, unlike with other contracts. Both prospective spouses should disclose all of their assets and liabilities prior to signing the agreement, and they must have negotiated and signed the agreement in contemplation of getting married.

A failure to fully disclose your assets or debts may result in a court later voiding the agreement due to the lack of disclosure. This is because your pre-marital agreement may alter your default property rights under existing law, so you can only evaluate the risks and benefits of the agreement if you have a full disclosure of your partner's financial situation. An agreement may also be unenforceable if a spouse did not sign voluntarily or if the agreement is unconscionable. Preferably, each of the parties has his and her own attorney so that each understands the agreement. It is unethical for a single attorney to represent both parties.

Under Texas law, there is a rebuttable presumption that property during a divorce is community property. Community property is subject to a just and right division. A pre-marital agreement allows someone who is going to marry to protect his or her separate property by deciding in advance what the character of particular property or income is going to be at the time of the divorce. For example, you might agree with your spouse that each of you will keep your wages and income as separate property throughout the marriage when they would otherwise be considered community property. Pre-marital agreements may also establish the right to control property during a marriage, provide for the division of retirement and employee benefits, and either set or waive alimony and cost of living adjustments.

There are certain areas that are off-limits in premarital agreements in Texas. For example, you may not limit the amount of child support that one parent would need to pay to the other in case of divorce or a child custody dispute. The right to child support is the child's right, rather than the parent's right. Judges are supposed to award whatever child support is appropriate under the circumstances and the law, regardless of what the parents agree. Child custody is also off-limits. These decisions are supposed to be made based on a child's best interests at the time of the divorce.

Sometimes, couples decide during a marriage to create a post-marital agreement that spells out how marital property will be divided in case of divorce. Sometimes this becomes necessary to protect one spouse's assets from the debts of another spouse, or to protect certain assets of a spouse from the risks associated with an entrepreneurial effort. The agreement must be in writing, and no consideration is necessary.

A post-marital agreement may be unenforceable if it is not signed voluntarily or if it is unconscionable. The agreement may be unconscionable if a spouse against whom enforcement is sought was not provided with a fair, reasonable disclosure of the other spouse's financial situation; did not voluntarily and expressly waive that disclosure; and did not have adequate knowledge of the property or financial obligations of the other party. This applies to pre-marital agreements as well.

Although it may seem more romantic to get married without considering the possibility of divorce, it may help to think through various scenarios and make certain financial decisions in advance. If you are considering a pre-marital or post-marital agreement, the Dallas lawyers at the McClure Law Group can advise you and represent you as appropriate. Call us at 214.692.8200 or contact us via our online form to set up an appointment if you need a divorce or child custody attorney.