Who Should Get One, What They Cover, and Why You Should Get a Lawyer
Forming a prenuptial agreement with your soon-to-be-spouse can be a great decision for your marriage.
Many people dismiss prenuptial agreements as indicators of distrust or low hopes for the marriage. However, creating a prenuptial agreement is actually a smart, financially savvy move.
A prenup can offer both you and your future spouse protection and peace of mind. As the average age of marriage continues to rise, more and more couples are beginning their married lives with more assets than ever before, and the population of divorced adults has risen as well.
Preparing a prenup agreement in Texas before saying “I do” is a smart way for both you and your spouse-to-be to plan for the future.
Do Prenups Hold Up in Texas?
As long as your prenup meets the requirements of Texas state law, it will be enforceable in court. Texas prenup laws state that your prenup will be enforced if:
- Both parties voluntarily signed the prenup, that is, neither party signed under coercion or duress;
- The parties signed in advance of an upcoming marriage;
- The terms are not unconscionable (does not create severe hardship for either party); and
- It fully discloses the property and financial obligations of both parties unless one party has waived their right to disclosure in writing.
If your prenup meets these requirements, it will be enforced by a Texas court.
Should You Get A Prenuptial Agreement?
Prenups certainly aren’t for everyone. However, you may want to consider one if you or your future spouse is entering the marriage with either significant assets or major debt. It’s also worth considering if one of you is remarrying or has children, or if one spouse is much wealthier than the other.
Getting a prenup in Texas allows you to:
- Provide for your loved ones in the event of death or divorce;
- Protect your existing assets;
- Resolve property and asset disputes before they ever occur, and
- Reduce conflict during a divorce settlement should divorce occur.
These common reasons for prenup agreements don’t apply to everyone. Even if they don’t apply to you, you may still wish to enter a prenup for other reasons.
Like all legal undertakings, creating a prenuptial agreement comes with an economic cost as well as many benefits. Here, we review everything you need to know about prenuptial agreements in Texas, including costs, main advantages, and what a prenup can and cannot do.
Benefits of a Prenuptial Agreement
Many people believe that getting a prenuptial agreement is unromantic. Others see it as a presumption that the marriage is going to fail or that one spouse is marrying only for the economic benefits. However, this is not the case. A prenuptial agreement can be a smart part of your plan for your life with your spouse that protects both of you.
Some of the most obvious benefits of a prenuptial agreement are:
- Protecting each spouse’s property;
- Avoiding high legal costs in the future to litigate a property division or spousal support settlement;
- Protecting each spouse from the other’s debts;
- Avoiding future disputes;
- Preparing for the possibility of a spouse’s death;
- Providing for children and loved ones from this marriage or a previous one; and
- Protecting a family business or family assets.
A prenup can also provide peace of mind. It can be comforting to know that your assets and best interests are protected, that your spouse is protected, and that you are in agreement about what should happen should the worst occur.
While prenups are stigmatized, making a prenuptial agreement with your future spouse is simply a form of life planning, similar to making a will. Preparing for future challenges, even while hoping for the best is always a good idea.
In addition, prenuptial agreements are not just about planning for divorce or other negative outcomes. Prenups in Texas can include agreements about how to sell or dispose of property in any number of events that may occur during the course of the marriage.
There are few downsides to a prenuptial agreement. This is especially true if either spouse is entering the marriage as a high-asset individual or high-income earner.
Discussing a prenup with your future spouse can even provide an opportunity to start making other long term plans such as creating a trust or savings plan to provide for children or relatives. Typically, the only disadvantage to a prenuptial agreement is the fact that many people consider these agreements unromantic.
Get Help with Your Prenuptial Agreement
Creating a prenuptial agreement is a big decision and should be one that you and your soon-to-be-spouse make together. Many couples work with a marriage counselor or other trusted person prior to marriage to help them learn how to resolve conflicts as a couple. This person can also be useful in helping you decide what to include in your prenuptial agreement.
If you and your partner do decide that creating a prenuptial agreement is the right choice, it is very important to hire a talented family law attorney with experience crafting prenuptial agreements. Both you and your future spouse should be represented by your own lawyer.
Courts are more hesitant to enforce a prenuptial agreement if one party does not have a lawyer. This is especially true if the terms of the agreement seem more favorable to one spouse than the other. A lawyer can help to ensure that a court does not invalidate your prenup over concerns about coercion.
A lawyer can also help you comply with specific state requirements for prenuptial agreements. For example, a lawyer can make sure you sign the prenup before the wedding. There is a lot to think about during the months leading up to marriage, and a lawyer can make sure that your prenup complies with state law.
Finally, an experienced lawyer can help you draft a prenup that clearly spells out your agreement with your spouse and avoids terms that a court is likely to invalidate. While it is tempting to DIY your prenup to save on legal fees, a clearly written and enforceable prenuptial agreement will save you court costs and stress should the agreement come into play in the future.
How Much Does a Prenuptial Agreement in Texas Cost?
Once you decide that you want to form a Texas prenuptial agreement, cost may be a big factor in whether you actually do so. How much is a prenup in Texas? Unfortunately, there is no easy answer to the question of how much a prenuptial agreement in Texas costs. Costs vary according to factors such as:
- The lawyer you choose;
- How long it takes you and your future spouse to negotiate; and
- The amount of time your lawyer invests in your case.
Future newlyweds with a pretty solid idea of what they want may expect to pay a few hundred dollars in legal fees as they iron out the details. These fees might include services such as:
- A short consultation with the attorney;
- Gathering a list of each party’s assets;
- Drafting waivers of financial disclosure;
- A drafted and finalized prenuptial agreement;
- Copies of the agreement; and
- A letter explaining how to record the documents.
Before you hire an attorney, ask how much their services will cost.
What Does a Prenuptial Agreement in Texas Cover?
A prenup in Texas can accomplish any number of things. A prenup can:
- Determine who has the rights to manage or control property acquired during the marriage, including the rights to buy, sell, transfer, and more;
- Decide in advance whether either party will be required to pay alimony in case of divorce and how it will be calculated;
- Direct the parties to make a will, trust, or other arrangements to ensure their assets are appropriately distributed at death;
- Dictate additional steps necessary for carrying out the prenup;
- Determine how to provide for beneficiaries if one spouse suffers incapacitation or death;
- State how property will be divided in a divorce; and
- Direct parties to name one another as beneficiaries on a life insurance policy.
A prenuptial agreement can also cover any other personal rights and obligations of each spouse during the marriage as long as the provisions do not violate the law or any public policy.
What Does A Prenuptial Agreement in Texas NOT Cover?
Child custody support can’t be part of prenuptial agreements in Texas. The rights of child support belong to the child and can’t be bargained away by the parents. Texas courts determine child custody based on the circumstances at the time of the divorce. Courts must take into account the best interests of the child.
Key Elements of a Prenuptial Agreement in Texas
A good prenuptial agreement that provides for both parties takes more than just sitting down and discussing your finances and desires for the future. When preparing your prenuptial agreement, make sure the following key elements are in place.
TIMING
Courts only honor prenuptial agreements that are free from:
- Duress,
- Overreaching, and
- Coercion.
Timing is important in making sure your prenup is free from duress and coercion. A prenuptial agreement presented shortly before a wedding may create a presumption of duress or coercion. Postponing a wedding at that point to carefully consider the proposed prenup could cause emotional distress, embarrassment, or even hardship.
If you’re going to use a prenuptial agreement, present it long before the wedding date—no less than 60 days before. Not only is this a safer legal move, it will also give you and your fiancé time to ensure you’re comfortable with the arrangement—and comfortable with the marriage.
DISCLOSURE
Both parties need to present complete financial statements that cover:
- Income tax returns,
- Bank accounts,
- Real estate information,
- Mortgage information,
- Security accounts,
- Lists of automobiles and other vehicles,
- Value of retirement benefits, and
- Outstanding loans and debts.
If you or your spouse owns a business, you need to disclose information about the business, including its name, the nature of the business, the value of your interest in it, and the method you use to calculate its value.
One or both spouses may also waive their right to financial disclosure. The waiver must be voluntary and specifically stated in writing.
INDEPENDENT COUNSEL
Obtaining independent counsel is crucial to the validity of your prenuptial agreement. While no state requires independent counsel for the agreement to be valid, a lack of independent counsel may later suggest that the contract was entered involuntarily.
In addition, using independent counsel before the prenuptial agreement is complete provides a greater assurance that your agreement will hold up in the event of divorce.
Independent counsel can help you avoid unconscionability
If the court finds any of the provisions to be unconscionable, meaning enforcement would create severe hardship for one spouse, they will not be enforced. For example, if the provisions leave a spouse at a greatly reduced standard of living or render them unable to meet their reasonable needs, the agreement will not be enforced.
When drafting your prenuptial agreement, make sure it meets the reasonable needs of the dependent spouse in the marriage. You can allocate assets or alimony based on the length of the marriage. You can also specify a time after which the agreement or certain provisions terminate.
CONTENT
The above elements—timing, disclosure, and independent counsel—speak more to what makes a prenuptial agreement valid or legal than what will make for a strong prenuptial agreement that provides full protection. A strong prenuptial agreement depends on content.
You want to make sure that your prenuptial agreement addresses the things that matter to you and your future spouse. It is also essential that you and your spouse-to-be express your wishes in clear, easy to understand terms. Clear drafting will help you avoid legal battles in the future if the terms of the agreement come into play.
While these are difficult things for spouses-to-be to think about, it is critical to discuss them and include decisions regarding these topics in a prenuptial agreement.
What Happens When a Prenuptial Agreement Isn’t Created Correctly?
It is important to keep the elements above in mind when creating a prenup. Texas courts will invalidate a prenup if it does not comply with state law or if it contains unfair provisions. In the event that you and your spouse decide to get a divorce, you will want your prenup to hold up in court.
A court may invalidate your prenuptial agreement if:
- It is not in writing;
- Either you or your spouse has not signed the agreement;
- The agreement was signed as a result of coercion, pressure, or duress;
- Your spouse did not have a reasonable amount of time to read the agreement prior to signing;
- Either you or your spouse did not fully disclose everything before creating the agreement;
- Either you or your spouse did not have independent legal representation at the time the agreement was drafted and signed;
- The agreement contains illegal or invalid provisions, such as child support obligations or requirements for one spouse to do something that is against the law;
- The agreement is so unfair as to be declared unconscionable because it would result in one spouse facing severe financial hardship if the agreement were enacted; or
- The agreement was not executed before you got married.
To avoid these missteps and ensure that you have a sound prenuptial agreement that will be valid and enforceable at a later date, working with an attorney is a must.
If a prenup is invalidated or determined to be unenforceable in court, Texas state law will override the terms of the prenup in determining how property is divided, who has rights to specific marital property, whether and to what extent alimony is awarded, and anything else that was addressed in the invalid prenup.
Since the purpose of the prenuptial agreement is to create a plan that produces a more favorable outcome than state law, you will likely be dissatisfied with the state law outcome if your prenup does not hold up in court.
Call the Law Office of Ben Carrasco PLLC Today
Make sure you cover all your bases by choosing a qualified family lawyer for your prenuptial agreement to help you make the smartest decisions. At the Law Office of Bed Carrasco PLLC, our dedicated family law attorney has the experience and qualifications that you’re looking for and is passionate about protecting your best interests.
Attorney Ben Carrasco has guided many couples through creating prenuptial agreements, as well as postnuptial agreements. He is also well-versed in divorce and separation issues such as property division, spousal maintenance, and child support and child custody matters. Call Ben today at (512) 489-9820 or request a consultation online!
