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Postnuptial Agreements in Texas

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What are Postnuptial Agreements and Why Do I Need One?

Postnuptial agreements are contracts signed after marriage, but are otherwise similar in content and contour to prenuptial agreements. Postnuptial agreements in Texas help couples plan for their future in case of divorce. Although some couples view postnups as an indicator of distrust in a marriage, any competent attorney at a Texas family law firm will inform you that they are actually a financially intelligent move for couples coming into a marriage with any assets or significant income sources of their own. With people marrying later in life, it is much more likely for individuals to have accumulated independent wealth that they may wish to keep separate from their spouse or to retain in the event of a divorce. Postnuptial agreements are an optimal vehicle for helping couples come to a contractual agreement on many topics relating to their marriage or divorce. Regardless of income, clients should consult with their attorney about the possibility of creating a postnuptial agreement in Texas.

Requirements for postnuptial agreements

Under the Texas Family Code, a postnuptial (or marital property) agreement must be in writing and signed by both parties. The agreement will not be enforceable if a party proves that they did not sign voluntarily or that the agreement was in some way unconscionable (meaning the terms of the agreement are so skewed to one party that the agreement cannot stand).

What can postnuptial agreements contain?

Postnups in Texas can cover a range of issues pertaining to finances and property characterization and property distribution to the spouses. The following is a nonexclusive list of topics often covered by postnuptial agreements in Texas:

  • The management of finances during the marriage
  • The division of property in the event of divorce
  • Control of property during the marriage
    • Conversion of separate property to community property or vice versa
    • Decisions on who receives income from property during marriage
  • Spousal maintenance
  • Responsibility for accrued debts
  • Asset distribution at death

What can postnuptial agreements not contain?  

Postnuptial agreements in Texas cannot contain any terminology relating to child custody. This means that decisions regarding child possession and visitation schedules must be made and cemented in a separate agreement or by court order.

Are There Provisions in Postnuptial Agreements that Cannot be Legally Enforced?

Given that postnups are a contract, couples generally have free reign as to the type of agreements they come to regarding marriage and divorce. Aside from child custody agreements, there is the freedom to contract in almost any way a couple sees fit. As a result, most content in a postnup in Texas will be legally enforced unless it breaks the law in some way. Similarly, a postnup will not be enforced if there is proof of fraud or duress in its creation.  

If you think a postnup could be right for your marriage, call and set up a consultation with Scroggins Law Group, PLLC. We will get you the answers you need.

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