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 is an agreement between prospective spouses made in contemplation of marriage. Generally speaking, prenups control the division of property, such as land, buildings, retirement accounts, and automobiles.
Prenuptial agreements have to be finalized before a marriage occurs. They become effective as soon as the parties are legally married. Prenuptial agreements are also known as premarital or an antenuptial agreements in some jurisdictions.
If any of the following scenarios apply, couples should 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 change in child custody. The reason for this is that the right to child support belongs to the child, not the parent. Child support money may technically be paid by one parent to another, 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, child custody can’t be decided in advance via a prenuptial agreement. This is because child custody awards are decided exclusively by the family law courts, which 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 the prenuptial agreement 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 alimony, 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, all of the following requirements must be satisfied:
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 prenuptial agreement. Both parties have to agree and the new agreement must be in writing. No consideration is necessary to support the modification or disavowal. Modified prenuptial agreements are known as “postnuptial agreements.”