Drafting and creating your prenuptial agreement may be as important as choosing a wedding venue. However, many engaged couples may not see it that way and avoid the subject entirely.
It can be uncomfortable to think about what if things do not work out. A prenuptial agreement requires you and your intended to make decisions about how you would end your marriage if it became necessary. By making these decisions in advance, you can avoid arguing later when emotions are heightened and the divorce process will be much easier and usually less expensive..
Many people believe that a prenuptial agreement encourages divorce. But in fact, drafting and completing the agreement requires you to work closely together to think about “what if ” even if a divorce never happens. These discussions reveal what each might consider fair, priorities and even future financial decisions. A well drafted prenuptial agreement brings a level of security and trust to you and your fiancé.
• Community or marital property—this describes any property acquired during the time of the marriage. It can include real estate such as a marital house, financial assets, such as salary or wages, a 401K or other retirement plans, life insurance, cars, businesses, jewelry, or other physical property. Under Texas law, community property is divided between the two spouses in a fair and equitable manner, as close to 50/50 as possible.
• Separate property—This indicates a property that if the couple should divorce, would not be divided or factored into marital property. Included is anything that the individuals acquired prior to the marriage, such as a car, real estate, a business, jewelry, or other physical property. This may include an engagement ring. However a house purchased by one party prior to the date of the marriage may be considered community property if it is used as the primary marital home. Additionally, inheritances from relatives may also be considered separate property, unless it is commingled with marital funds, such as a joint bank account, or used to pay marital debts and expenses.
• Probate-The process that brings a legal and administrative end to a deceased person’s life. In a prenuptial agreement, it’s important to ensure that the prenuptial agreement and the wills of both parties address the division of property, and provisions made for the surviving spouse.
• Marital debts—any type of debt that two people jointly incur after the date of the marriage. This includes debts for cars, houses, and other real estates, as well as things like credit cards and other types of borrowing. Marital debts can also be addressed directly in the prenup, deciding the division of debts as needed.
Student loans acquired during the date of the marriage may also be part of marital debt since Texas is a community property state. Another factor is how the other spouse benefitted from the student loans—that is, if one party borrows $75,000 for medical school, the other would benefit from the subsequent career, unless the marriage ends beforehand. Your divorce attorney can advise you accordingly.
• Property division—This is the process by which all marital assets and debts are divided between the two parties. Addressing them ahead of time eliminates the risks of the court making that decision for you, if the divorcing couple cannot agree.
• Alimony, also called Spousal Support—if upon divorcing, one party needs financial assistance while attempting to establish their own household, or in keeping up the former marital home, the prenup can dictate that support. In a divorce without a prenuptial, the court can award financial support (alimony) to one spouse for a specific amount of time. Generally, alimony for life isn’t commonplace and spousal support is only for a specific amount of time. But again the prenuptial can help a couple think about what would be fair for support. Working with an attorney can help guide your thoughts in this area.
• Sunset clause—Understanding that prenups may become obsolete, many couples opt to have a so-called “sunset clause.” In other words, the prenup is only valid for a specific amount of time, such as 5 to 10 years. If the marriage lasts beyond that, then the prenup will expire, or “sunset.” The prenup can be replaced by other contracts, such as a cohabitation agreement, postnuptial agreement, and other relevant contracts. These should be written in concert with your will and estate plans so that there is no conflict that could essentially invalidate the prenup or other agreements if it went to court.
A Note About Child Custody And Support
One of the most important decisions a divorcing couple must make involves their children. However, these decisions can not be added to a prenuptial agreement.
Child custody, or “conservatorships”, is decided separately from the divorce. While parents can create their own parenting plans and somewhat decide on child support in Texas, they are not able to simply make their own arrangements as they would for the divorce.
Child support comes under the jurisdiction of the Texas State Attorney General’s Office, which also handles child support payments. Ultimately, the court has the final say in a child or a children’s future, using the standard of “the best interests of the child.” Therefore, any reference to child custody, arrangements, or support, is invalid in any prenuptial agreement.
Prenup? Let Wendy L. Hart Help
So consider discussing a prenuptial as part of your wedding planning. Wendy L. Hart is an excellent family law attorney with experience assisting people throughout Tarrant County who need help in marriage and family legal matters. From a prenuptial agreement to wills and estate planning, Wendy can help with many family law issues.