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The basics of Texas prenuptial agreements

Future spouses can enter into a contract regarding certain marital issues, especially those concerning property.

At one time, bringing up the possibility of a prenuptial agreement with your future spouse might have been highly controversial. Nowadays, prenups are much more accepted by society. For one thing, the rights and desires of women and men entering marriage to control their present and future property rights and income in the way they want to instead of how the law would is more respected.

What is a prenup?

Basically, a prenuptial agreement is a special contract between people who are engaged to be married in which they can agree on matters of property ownership and characterization during the marriage, at divorce or upon death, as well as contract regarding many other marital issues. Prenups are controlled by state law and Texas has a series of statutes controlling prenuptial agreements.

Texas is a community property state

One of the main reasons people use prenups in Texas is to change the nature of property, which in Texas is either characterized as separate or community during the marriage. Broadly, separate property is anything brought into the marriage that was previously owned by one spouse as well as anything inherited or received as a gift by one spouse. Separate property remains the property of the owner upon divorce.

Community property is everything else that comes into the marriage, including income earned by either spouse. Sometimes whether something is separate or community property can be a difficult legal question, but it is usually clear.

Unless the prenuptial agreement says otherwise, these characterizations of property will automatically apply and control.

Texas law regarding prenups

Prenuptial agreements may also contain other kinds of provisions such as alimony or property division in a divorce. Texas law forbids provisions regarding:

  • Anything that negatively impacts a child's right to support
  • Anything that violates public policy
  • Anything that violates a criminal law, if violation of that law would result in penalties
  • Anything that is meant to defraud creditors

Requirements for a valid prenup in Texas include:

  • Be in writing
  • Signed by each future spouse
  • Disclose fully each party's assets and liabilities
  • Waive the right to ask for future disclosure

A Texas prenuptial agreement may be challenged as to validity if one party did not sign it voluntarily. It can also be voided if it was unconscionable (shockingly unfair) when signed and the party to whom it is unconscionable did not get full disclosure of the other's assets and liabilities; did not waive in writing the right to future disclosure; and did not have or could not reasonably have had proper knowledge of those assets and liabilities

Do not go it on your own without legal advice

Any Texan contemplating marriage who is wondering whether to explore a prenup or whose partner has indicated he or she would like one should speak with an experienced attorney as soon as possible. Prenuptial agreements are very complex legally and should be carefully drafted or reviewed by a family lawyer, including careful explanation of the impact of each provision.

Attorney Roland Esparza of the Law Office of Roland R. Esparza, P.C., in San Antonio, Texas, represents clients from the San Antonio area and across South Texas in all matters related to prenuptial agreements, including negotiation, review and drafting as well as challenge or defense of agreements in court.

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