Nothing’s more romantic than a wedding. But the unfortunate reality is that a sizeable percentage of American marriages end in divorce. That’s why it’s best to consider your financial reality before you get married. You may be surprised to learn that you need a prenuptial agreement.
A prenuptial agreement ("prenup" for short) is a contract between prospective spouses made in contemplation of marriage. Generally speaking, prenups control the division of property, such as land, buildings, retirement accounts, and automobiles.
Couples must finalize a prenuptial agreement before getting married. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or antenuptial agreements in some jurisdictions.
If any of the following scenarios apply, couples may want to consider getting a prenuptial agreement:
This list is non-exclusive. If you have any doubts about whether you should enter into a prenuptial agreement, contact a Texas family law attorney for more advice.
Prenuptial agreements in Texas can include some or all of the following issues:
In Texas, premarital agreements can’t limit the amount of child support that one parent would have to pay to the other in the event of a separation or divorce. The right to child support belongs to the child, not the parent.
The law may require one parent to pay child support to the other, but the legal reality is that the money belongs to the child and can only be used to support the child. Also, child support awards must be modified if financial circumstances change. Judges must award the amount of child support that is fair and reasonable under the circumstances, regardless of any prenuptial agreement by the parents.
Similarly, parents can’t determine child custody in advance via a prenuptial agreement. Family law courts exclusively decide child custody and judges primarily look at the facts and circumstances of each unique case and render a decision based on the child’s best interests at the time. A judge will give little to no consideration to what a prenup says about child custody and support.
On the other hand, the Texas statutes specifically provide that prospective spouses can memorialize a binding agreement about alimony in a prenuptial agreement. Prospective spouses can agree to a set level of support, to waive (give up) alimony, to cost of living adjustments, or to any other matter affecting alimony, and the family court will enforce that part of the agreement.
Texas has adopted the Uniform Premarital Agreement Act (“UPAA”), which spells out all the elements that the National Conference of Commissioners on Uniform State Laws believes should be present in a legally enforceable prenuptial agreement. For a prenuptial agreement to be legally valid in Texas, it must meet all of the following requirements:
Prenuptial agreements are legally unenforceable if any of the following statements are true:
Yes. A married couple can modify or invalidate the initial agreement by entering into a subsequent agreement, in writing, that disavows or alters the prenup. Both parties have to agree, and the new agreement must be in writing. No consideration is necessary to support the modification or disavowal. These modified prenuptial agreements are referred to as “postnuptial agreements.”