Most people have heard about prenuptial agreements from celebrity engagements and weddings or based on what they have seen in romance movies. More often than not, the characters in these portrayals are famous and/or super wealthy. And usually one party is viewed as the “have,” while the other is the “have-not.” Of course, the have-not is getting the short end of things or is being forced to sign the agreement before walking down the aisle.
Just because you aren’t rich now doesn’t mean you won’t be in the future. In reality, a prenuptial agreement can simply put in writing how you and your spouse will approach finances so that there will not be any surprises. And if you later divorce, you have a clear enforceable agreement. Agreements signed after the marriage are called postnuptial or postmarital agreement. Both pre and post nuptial agreements are commonly referred to as marital agreements.
Marital agreements can (and should) be written to protect both parties. In fact, a one-sided agreement is difficult to enforce. In Texas, marital agreements have been voided by courts for the following reasons:
Duress or coercion - Marital agreements are only valid if they were entered into voluntarily. Threats, including legal or economic threats, may count as duress or coercion.
Dishonesty - Parties must make a full disclosure of all assets and debts before signing a marital agreement. If your spouse hid money or assets or was not forthcoming about a debt, the court might not enforce the agreement.
Unconscionability - If the agreement would leave one spouse in a position where they are not able to support themself, the agreement is likely to be found as so one-sided and unfair such that it would be unconscionable to enforce the agreement.
So, with that in mind, what are marital agreements and what can they do? A prenup or postnup is an agreement you enter into with your spouse that can deal in advance with property, spousal support and other financial issues. Your agreement can deal with issues such as making sure that separate property assets are preserved as separate property during the marriage. They can also prevent the creation of community property during the marriage so that all property earned or purchased during the marriage is treated as separate property.
No, marital agreements aren’t romantic, but fighting over money isn’t romantic either. The clarity that comes from being open and honest about finances in working together on a marital agreement can create a stronger marriage with fewer unpleasant surprises.
If you are wondering if a marital agreement is for you, call Laguna Law.