Traditional marriage vows are increasingly being revised to delete the words “till death do us part.” Since almost half of all marriages end in divorce, many people who have children from a prior marriage or desire to protect assets such as ownership interests in business choose to enter into a prenuptial agreement. Approximately 40 percent of marriages include a spouse who has been married before.
All 50 states recognize prenuptial agreements. They are simply contracts between prospective spouses entered into before the marriage that identifies each spouse’s separate property and defines each spouse’s rights in the other’s property, including future earnings, during and upon termination of the marriage by divorce or death. The prenuptial agreement can waive a spouse’s rights to alimony and provide for the rights of children from a prior marriage. A prenuptial agreement cannot waive rights to child support but can provide for additional support.
A business owner should include provisions in the prenuptial agreement that provide for the sale of the business from one spouse to the other. If this is not practical, then provisions should be included that cover who controls the business post-divorce. For example, a spouse can retain the right to share in the profits but give up voting rights regarding the business.
A common misconception about prenuptial agreements is that they are only for the wealthy. There are reasons other than preservation of assets and income for people to use prenuptial. A spouse may desire to provide for the care and support of children or grandchildren from a prior marriage or for needy parents. A good prenuptial agreement will allow the parties to a marriage to determine the division of property, such as business ownership, in the event of a divorce, instead of a judge or jury. A common provision in prenuptial agreements is the agreement to make a will or create a trust in order to provide for the support of a spouse in lieu of alimony or division of property under the divorce laws. Another common provision in prenuptial is the agreement to make a separate buy-sell agreement regarding the sale of a business in the event of a divorce. A prenuptial agreement can also provide for the obtaining of insurance for the benefit of a spouse.
There are certain technical provisions required in Texas. For example, the agreement should be witnessed by two persons and should be recorded with the clerk of the superior court in the county where the parties reside.
In the past, Texas courts refused to enforce prenuptial agreements. However, in 1982 the Texas Supreme Court recognized the increased rate of divorce and ruled that prenuptial agreements were enforceable. Since then, Texas courts have upheld prenuptial agreements if the answer to each of the following questions is “no”:
1. Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
Each spouse should fully disclose his or her financial situation including assets and income. Financial statements for your business should also be disclosed. Each spouse should have a separate attorney who should sign a certificate stating that there has been full disclosure and each spouse understands the consequences of signing the agreement. It is advisable to enter into the agreement as far in advance of the marriage as possible. A prenuptial agreement entered into on the eve of the marriage could be subject to attack as being forced upon one spouse.
2. Is the agreement unconscionable?
This means that if one side gets too greedy, a judge could throw the agreement out. Common sense should be the guide here. A spouse should not be left destitute. Also, make sure that only important items are covered in the agreement. For example, it is proper to discuss issues such as the religious training of children. It isn’t a good idea to put more trivial items in, such as requirements that a spouse maintains a certain weight.
3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
For example, a significant decline in the health of a spouse could cause a judge to void the agreement. Texas courts are reluctant to enforce a premarital agreement that would force a spouse to apply for welfare. It’s a good idea to review a prenuptial agreement every few years.
A prenuptial agreement may not be a very romantic subject to discuss prior to marriage. However, it is a valuable tool for the legal strategist who hopes for the best and prepares for the worst.
Prenuptial Agreement Attorney Houston
Marriage is not only a public statement of a couple’s emotional commitment but a strong legal and economic relationship. In our Law Firm, our Houston Prenuptial Agreement attorneys aid clients have peace of mind and thoughtful planning through premarital agreements and post-marital agreements. The whole process of making a prenup or postnup is undoubtedly an exercise in money management and financial plan that delivers more than just economic rewards to the couple concerned. We now have executed prenups for people just starting in their careers, folks on their second marriage, financially established parents, and then for billionaires.
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- Risks of Do-It-Yourself Prenups
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- Premarital Agreements
Laws overseeing community property and mutual responsibility have become more complex, and so have the challenges addressed in premarital agreements. It indeed is increasingly essential for marital contracts to be drawn up or examined by a lawyer with all the actual practical experience. Our Houston Prenuptial Agreement Attorneys provide many years of experience in drafting premarital agreements and cohabitation agreements for couples.
If you’d like to talk with one of our attorneys regarding a Houston premarital agreement, be sure to contact our office for a complimentary consultation.
Not every couple requires a prenuptial agreement, and in situations when they’re important, the issues that need to be dealt with can vary greatly. On your consultation you will have the opportunity to discuss some questions:
- Will a premarital agreement give protection to my kids?
- Will, my interest in my business and home, become community property after I marry?
- Will a do-it-yourself prenup be enforced by a State court?
- Will following a sample prenup protect my interests?
- Will an inexpensive prenup give protection to me?
- What problems can a premarital agreement cover?
- Can I get a postnuptial agreement?
- What are the pros and cons of your postnuptial agreement?
If you are thinking of coming into marriage or merely a domestic partnership agreement, you happen to be engaged, or perhaps you are married and yet thinking of a post-marital agreement, it is time to begin going over how you may handle the issues involved.
If you are seeking an attorney with extensive experience drafting premarital agreements, please call us or call us by e-mail today. Your first consultation is free.
Houston Prenuptial Agreement Lawyer
Even if you think of it as a “prenuptial,” “premarital” or even “antenuptial” agreement, it’s the same thing: an agreement where a couple sets out the rules that will control their property, debts, income, and expenses. Lawyers love to speak about prenuptial agreements. They keep on talking themselves into believing that, sooner or later, virtually all couples who marry – or at least who remarry after the divorce – will sign one (and pay them a big fee). This is unlikely.
Prenuptial agreements occasionally appear sensible. A prenuptial agreement makes it possible for both spouses to shield their individual property. If not, in case one of them owns an asset now and sells it after marriage, the cash may become marital property.
A prenuptial agreement even allows both spouses to defend themselves from the other’s financial obligations – those received before the marriage and those obtained after. Moreover, it also can let them know what degree of support one of them will provide to the other should they divorce or in case one of them dies.
Prenuptial agreements can even address instances in which one partner leaves a secure and fulfilling job to be with a geographically distant spouse. In case the marriage doesn’t work out, will it be acceptable to send the relocating spouse back home without a penny? Many people would say not. A prenuptial agreement is an effective way to provide for that.
On the other hand, a prenuptial agreement also makes it possible for the spouses to agree with the fact that every little thing they have and everything they owe will automatically end up shared from their wedding day forward, or even gradually as they remain married over a period of years. The flexibility of the prenuptial agreement is its most important feature.
Many people avoid them. They can indeed be prudent. Nonetheless, premarital agreements do not feel right. It appears like you’re giving up on your marriage even before you get started. You’re questioning two people who are ultimately in love and convinced that it is a marriage meant to last forever too, in effect, work out their divorce settlement before they say “I do.” However you dress it up, this is a real downer for romance.
Also, prenuptial agreements are costly. Many of us can complete a will without a lawyer. Many people can finalize a divorce without a lawyer, or even at least only using an attorney as a coach. However, it usually is necessary to employ an attorney to draw up a prenuptial agreement that could hold up. For both these reasons, prenuptial agreements are unusual. They may be getting a bit more common, but they are still rare.
Assistance from a Houston Prenuptial Agreement Attorney
In many states, you can only enforce a prenuptial agreement if it’s fair at the time you are applying it (a stringent standard), or perhaps in case, the party that you are seeking to enforce it against had representation as you negotiated and signed the agreement. As the practical matter, then, many people who work out and execute prenuptial agreements are both represented by attorneys.
Lawyers are not allowed to speak to a party who’s represented by another lawyer outside that attorney’s presence. On the other hand, if all four of you get together, there is no reason you cannot participate in a free and honest conversation regarding your choices as well as the risks and benefits of each option for each of you. In this style of communication, all four of you – both of you, and your lawyers – have the freedom to talk directly with anyone else in the group.
Any excellent prenuptial agreement will include an in-depth description of the sizeable property that each of you owns and the significant debts that each of you owes. This can be probably the most exhausting portion of preparing a prenuptial agreement, as it demands so much data gathering from both of you. In the event you and your intended are contemplating a prenuptial agreement, you can save yourself some time and money in the future in case you get started on getting that information today to ensure that it is all set when you start negotiating.
The exact form of the prenuptial agreement can be relatively simple (as few as 5 to 6 pages) or unbelievably complex (running on for 100 or more pages). However, negotiating the agreement need not be complicated. You and your intended can sit back in the same room with your respective lawyers and complete the main negotiations in an afternoon, leaving it to the attorneys to draft the language. Then you could meet for another session for which you accomplish the excellent points of the word and sign the agreement.
Then again, when the spouses lack essential trust, and the lawyers take over, talks can run for hours upon hours distributed over months, typically concluding in a marathon discussion and drafting session on the eve of the wedding rehearsal. Don’t be surprised; it has happened before.
Expect some tension. In one sense, the discussion of a prenuptial agreement permits each of you to see the other at their worst, when you’re arguing about money. In case you have disagreements, that’s fine. If you do not disagree, well, if you do not, that may bode well for your future marriage.
Another choice: In the event, you and your new spouse-to-be are certainly not going to do the prenuptial thing, there are some sensible measures both of you could take to control the way your property, debts, income, and expenses combine. First, make a complete inventory of everything you possess and everything you owe as of your wedding day. You can do this without even revealing it with your spouse. However, if the two of you can cooperate, you could each prepare an inventory and then sign a document showing that you have each shared this information with your spouse.
Second, to the extent that you would like property you obtained just before your marriage to stay independent, address it like that. Please don’t use it for the benefit of the marriage. If you ever sell or liquidate any of it, make sure you deposit the earnings in a separate account in your name only and that you don’t use the proceeds for the benefit of the marriage.
In case you already know that you will use some of your separate property for the benefit of the marriage, go ahead and pull out that much cash and deposit it into an account you can both draw out of, leaving the remainder of the separate property in the original statement and retaining its separateness.
As the marriage continues, you might be tempted to tap into your separate property account for expenditures of the marriage, like a down payment on a house or an investment in a business. Only understand that whenever you tap your separate property for a marital purpose, you make it seem more like marital property.
Information about Texas Premarital and Prenuptial Agreements
One of the most important aspects of marriage is assurance. The fact is that, with roughly 50% of all marriages ending in divorce, the only way that a Houston couple can provide for certainty is to get into a premarital or prenuptial agreement. As a Houston premarital agreement lawyer will tell you, the agreements help couples know where they stand during the marriage. If the unfortunate should occur and the couple gets divorced, a premarital or prenuptial agreement can help out to avoid legal and financial uncertainty. If you would like to hear more information about what these agreements include or if you would like to see if they are right for you, please call to set up a consultation with our Houston prenuptial agreement lawyer.