Drafting a Prenuptial Agreement

 Posted on November 17, 2016 in Prenuptial Agreements

No couple wants to consider the possibility that their marriage will end in divorce. However, it is often in the best interests of all parties to take precautions for this possibility by drafting a prenuptial agreement that will govern how property will be distributed in the event of a divorce. A couple who does not create a prenuptial agreement risks an unfair division of marital property during dissolution, so if you are considering marriage and have questions or concerns about drafting a prenuptial agreement or if you already have one in place and are pursuing a divorce, it is critical to contact an experienced complex divorce attorney who can explain your legal options.

The Contents of a Prenuptial Agreement

Prenuptial agreements can go a long way towards giving couples peace of mind regarding property division and alimony. However, only certain issues can be covered in prenuptial agreements, including:

• The characterization of property as separate property or community property;
• The management and control of property, including the right to buy, sell, use, exchange, lease, or mortgage;
• The division of property in a divorce, or separation, or upon the death of a spouse or the occurrence of another event;
• The modification or elimination of spousal support;
• The drafting of a will, trust, or other arrangement to carry out the agreement’s provisions;
• The disposition of death benefits from a life insurance policy; and
• Any matter, including personal rights and obligations, that are not in violation of public policy or law.

Prenuptial agreements cannot contain provisions limiting child support rights. For example, a couple cannot agree that one spouse will not seek child support or will not be required to provide it.

Execution Requirements

To create a prenuptial agreement, a couple must adhere to certain procedural requirements. This means that an agreement will only be considered enforceable in Texas if it is executed prior to the parties’ marriage and is:

• In writing; and
• Signed by both parties.

Prenuptial agreements can only be challenged in their entirety for two reasons. The first is if either spouse did not voluntarily sign the agreement. The other is if the agreement was unconscionable when it was signed and the party challenging it:

• Was not given fair and reasonable disclosure of the other spouse’s assets and debts;
• Did not voluntarily waive a right to disclosure of the assets; and
• Did not have knowledge of the other spouse’s assets.

Finally, a prenuptial agreement can only be revoked or amended if the parties sign a written agreement to that end.

Contact a Dedicated Complex Divorce Attorney

Although it may be unpleasant to contemplate the end of a marriage, creating a prenuptial agreement can help ensure that couples who do decide to dissolve their marriage are able to do so with as little stress as possible. If you have questions or concerns about a prenuptial agreement, please contact Powers and Kerr, PLLC at 512-610-6199 to schedule an initial consultation with an experienced Cedar Park complex divorce attorney.

Sources:

http://money.usnews.com/money/blogs/alpha-consumer/2012/02/08/why-almost-everyone-needs-a-prenup

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.4.htm