Premarital agreements are contracts entered into before marriage. In the agreement, the parties can agree on how assets acquired during the marriage shall be characterized and can agree on how issues will be resolved in the event the marriage is terminated. It typically focuses on characterization of marital assets and the division of those assets should the marriage end in divorce or the death of one spouse.
Postmarital agreements are similar to premarital agreements. One difference is that a a postmarital agreement is signed after the couple has already married. Postmarital agreements can also be used to partition community property accumulated into the parties’ separate property or it can be used to convert separate property to community property.
Reasons the Parties May Want a Premarital or Postmarital Agreement
Traditionally, the most common reasons for premarital and postmarital agreements were:
- One party has substantially more assets than the other one.
- The parties have been married before and each want to preserve their separate property for their own heirs.
Today, with the advent of more complex family arrangements, there are more unique reasons that parties are seeking premarital and postmarital agreements; such as preservation of family-owned businesses, in the case of spouse with a serious illness, or for divorce prevention or planning.
Premarital and Postmarital agreements are generally enforced. Under Texas law, an agreement must meet certain requirements:
- It must be in writing.
- It must be voluntarily signed by both parties.
- The terms must not be “unconscionable” or against public policy.
- Each party must make a full and fair disclosure of their own financial situation, which includes revealing all real property owned, investment accounts, and monthly income, for example.
- There is no evidence of fraud or duress.
Contents of the Agreements Regarding Children
Either type of agreement may cover issues regarding the children in the case of divorce; however, a party may not waive the right of a child to receive support because that would be against public policy.
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