The typical premarital agreement will identify the assets and liabilities of each of the prospective spouses prior to the marriage. These assets and liabilities are considered the separate property of each spouse. Under the Texas Family Code, any appreciation in value or interest earned during the marriage is considered community property. A prenuptial agreement, however, would protect any appreciation in value or interest earned from becoming community property. A premarital agreement generally sets forth how property will be distributed upon the death of either spouse or in the event of divorce.
In addition to provisions setting for how property will be distributed in the event of death or divorce, a prenuptial agreement may address:
*Limitations on spousal support;
*The making of a will or trust in conjunction with the prenuptial agreement in order to carry out its provisions;
*The right to manage and control specified property;
*Ownership and disposition of life insurance policies; and
*Choice of law.
Qualified Austin divorce attorneys are aware that Texas law allows parties to address any issues which they deem important in a prenuptial agreement as long as the provisions of the agreement are not illegal or against public policy and, therefore, counsel their clients accordingly so as to ensure that all provisions of the premarital agreement are valid. To that end, divorce attorneys in Austin commonly advise clients that a prenuptial agreement cannot provide for a waiver of child support.
Because state law governs the legal requirements for creating a prenuptial agreement, it’s important to know the Texas requirements. To be valid, a Texas prenuptial agreement must:
*Be in writing; and
*Signed by both parties
A party may challenge the validity or enforceability of a prenuptial agreement on the following grounds:
*He or she did not sign it;
*He or she signed it under duress; or
*At the time he or she signed it, the agreement was unconscionable (unfair)because a full and accurate disclosure of assets, liabilities, and other pertinent information had not been made by the other party and the party challenging the validity or enforceability of the agreement could not have had adequate knowledge of the assets and financial obligations of the other party.
Because there are so many important considerations that go into creating a sound premarital agreement, it’s important to consult with a family lawyer in Austin who has experience drafting them.