The unfortunate reality is that many marriages end in divorce. Prenuptial agreements are valid on divorce or death. In either case, there are assets to be distributed. While it is certainly unromantic to discuss and negotiate a prenuptial agreement, it can save a lot of heartache and money when it comes time to distribute those assets on death or divorce.
A prenuptial agreement is a contract between two future spouses and becomes valid on the date of marriage. It is presumed valid and it is very difficult to set aside a prenuptial agreement. Just because a prenuptial agreement is not fair upon death or divorce is not grounds to set it aside. Texas is a community property state. This means that upon the date of marriage, all property is presumed to be community property. The Texas Constitution (Article 16, Section 15) provides for prenuptial agreements.
The most common provisions in a prenuptial agreement are as follows:
- To designate which property will be each person’s separate property.
- To prevent claims against a party’s separate property in the case of divorce or death.
- To provide for the division of property in the case of divorce.
- To make provisions with regard to income and assets acquired during the marriage.
- To provide for (or eliminate) spousal support in the case of divorce.
- To provide for income taxes and income tax filings.
- To make provisions for the use and ownership of real estate upon divorce or death.
- Prenuptial agreements cannot provide for child support, visitation, parental rights or custody of children.
It is not uncommon for a future spouse to be offenced by a prenuptial agreement. The agreement can be negotiated by each person having their own attorney. Another option if the parties cannot reach an agreement is to utilize mediation.
If you think you want a prenup, start early, and consult a family law attorney. After the wedding RSVP’s are in, it’s probably not the best time to bring up the agreement. The longer the distance from the wedding, the better the chance of negotiating a prenuptial agreement peacefully.
