There are a number of good things that you can do for your marriage, including listening to your spouse, prioritizing compromise, and even forming a postnuptial agreement.
Texas maintains strict rules for doing the latter, however, so if you’re thinking about forming a postnup, working with a skilled family law attorney who has experience creating pre- and postnuptial agreements is strongly encouraged.
At the Law Office of Ben Carrasco, our attorneys are prepared to guide you through the process of creating a post marital agreement in Texas.
To schedule a consultation with an experienced Austin marital agreement lawyer, please fill out the form below.
What Is a Postnuptial Agreement?
Most people are more familiar with the term prenuptial agreement than they are with a postnuptial agreement. But the two documents do exactly the same thing: outline expectations for how finances will be handled both during the marriage and in the event of divorce or death of one of the parties.
The only significant difference between a prenuptial agreement and a postnuptial agreement is that the former is created prior to marriage, whereas the latter is created post-marriage.
What Information Is Contained within a Postnuptial Agreement?
Postnuptial agreements are used to outline the financial responsibilities, privileges, and details that are relevant to a marriage and to the parties of a marriage.
Examples of things that are typically found in a postnuptial agreement include:
- How property will be divided in the event of separation or divorce;
- Who in the marriage will control and manage property, including maintaining the right to sell property, transfer property, dispose of property, etc.;
- Whether or not spousal support (alimony) will be part of a divorce settlement, and if so, what that arrangement will look like;
- How a family business or other family property will be managed during the marriage and in the event of divorce or death;
- Distribution of funds and assets to children from another marriage in the event of divorce or death;
- The details of an estate plan, including agreements regarding the creation of a will or trust; and
- Any other decisions related to financial matters.
As you can see, postnuptial agreements are used to resolve financial matters. They are not used to completely bar a spouse from being able to collect alimony in the event of divorce, ensure that only one parent will have custody of children in the event of a divorce, or list any ludicrous requirements of the marriage (such as that one spouse must vacuum the house every Thursday, or else).
What Cannot Be Included in a Postnuptial Agreement in Texas?
While most things, especially those related to financial agreements, are totally okay within a postnuptial agreement, there are a few exceptions.
Namely, agreements related to child custody or child support cannot be formed, nor can any agreements or arrangements that are illegal or unconscionable.
For example, a judge may find it unconscionable if the terms of a prenuptial agreement completely bar a spouse who did not work and had given up their career in order to stay home with young children from receiving spousal support in the event of a divorce.
Requirements for Postnuptial Agreements
How the agreement is formed is also important. If the agreement is not formed in compliance with the following criteria, a judge may declare it invalid at a later date:
- Both parties must fully disclose all assets and debts;
- Both parties must be legally capable of entering the agreement;
- Both parties must enter the agreement voluntarily – if the agreement is entered under fraud or duress, it is not valid;
- The agreement must be in writing; and
- The agreement must be signed by both parties.
To draft a valid post nuptial agreement in Texas, it’s always best to consult an experienced family attorney. Your attorney can help you identify specifics to your marital situation that you had not considered. In addition, your attorney will check that you and your spouse comply with postnuptial agreement requirements.
What Are the Benefits of Forming a Texas Postnuptial Agreement?
Forming a postnuptial agreement may not sound like the most romantic thing that you can do for your marriage or your spouse, but in truth, working together to form a postnuptial agreement can actually help to foster a culture of communication and cooperation in your marriage - forming a postnuptial agreement is a big deal, and will require that both of you work together.
In addition to the practice in compromising that the formation of a postnuptial agreement will surely demand, other benefits of forming a postnuptial agreement include:
- Providing clarity about the expectations of the marriage in terms of management of finances;
- Ensuring that you will receive spousal support in the event of divorce (which may be especially important if you are planning to give up your own career as a result of the marriage);
- Protecting the inheritance rights of children and grandchildren from another marriage;
- Protecting yourself from paying an excessive amount of spousal support in the event of a divorce;
- Protecting a family business or other important family property from being subjected to division in the event of divorce or death; and
- Protecting a party from incurring the debt of their spouse.
In addition to these very practical benefits of a postnuptial agreement, consider that when you form a postnuptial agreement, which you will do with your spouse at a time in your marriage when cooperation is possible, you mitigate the contention that often accompanies a divorce.
Indeed, if you and your spouse do decide to divorce, the terms of the divorce (with the exception of child custody and child support) will already be spelled out. This will also allow you to expedite the divorce process, minimize high lawyer and court fees, and move forward with as little stress as possible.
When Might You Want a Postnuptial Agreement?
You might consider a postnuptial agreement if you encounter any of these circumstances during your marriage:
- When your spouse starts accumulating debts, as in compulsive shopping or gambling;
- When you are seeking marriage counseling;
- When a spouse has breached your trust but you are trying to make things work;
- When either of you pursues a new business;
- When one spouse receives a substantial inheritance;
- When one spouse is contemplating giving up a career to care for children;
- When you buy a luxury home or make any substantial purchase; and
- When you married quickly and didn’t take time for a prenuptial agreement.
While some of these circumstances present risk factors for divorce and others don’t, a postnuptial agreement doesn’t doom your marriage to failure. In fact, a postnuptial agreement can take financial worries off the table, giving you and your spouse the freedom to resolve other differences in marriage counseling.
Smart financial planning doesn’t mean that you are giving up on your marriage. If your spouse has reservations about a postnuptial agreement, encourage them to seek a family attorney of their own so that their best interests are represented too.
Why Do I Need to Work with a Lawyer When Forming a Postnuptial Agreement in Texas?
There are a number of do-it-yourself Texas postnuptial agreement forms that you can find online and file on your own, but this is not recommended.
When you form your postnuptial agreement on your own without legal counsel, there is too much room for error, and you may not know what to look for or what provisions to include to protect your best interests. In fact, in many cases, it is advised that you and your spouse are both represented by your own attorneys.
One of the biggest parts of forming a postnuptial agreement that is valid and enforceable is ensuring that both parties fully disclose their assets and debts. An attorney can thoroughly analyze your finances to ensure this requirement is satisfied.
Filling out a postnuptial agreement with an online form may save you money in the short term. However, it could cost you significantly in the event of divorce or other estate disbursement. If you make a mistake on your postnuptial agreement, your entire estate plan could be thrown out. It is usually much smarter to use a skilled family attorney who will make sure that your best interests are detailed in a valid postnuptial agreement.
Call the Law Office of Ben Carrasco Today
To guide you through the process of creating a postnuptial agreement that is valid and enforceable, please contact our experienced family law firm today. Our postnuptial agreement Texas legal team has years of experience, and we are ready to start advising you immediately.