Postnuptial Agreement Texas: Everything You Need to Know » Law Office of Ben Carrasco (2022)

  • Nov.01.2018
  • Divorce

Postnuptial Agreement Texas: Everything You Need to Know » Law Office of Ben Carrasco (1)
There are a number of good things that you can do for your marriage, including listening to your spouse, prioritizing compromise, and even forming a postnuptial agreement.

Texas maintains strict rules for doing the latter, however, so if you’re thinking about forming a postnup, working with a skilled family law attorney who has experience creating pre- and postnuptial agreements is strongly encouraged.

At the Law Office of Ben Carrasco, our attorneys are prepared to guide you through the process of creating apost marital agreement in Texas.

To schedule a consultation with an experienced Austin marital agreement lawyer, please fill out the form below.

What Is a Postnuptial Agreement?

Most people are more familiar with the term prenuptial agreement than they are with a postnuptial agreement. But the two documents do exactly the same thing: outline expectations for how finances will be handled both during the marriage and in the event of divorce or death of one of the parties.

The only significant difference between a prenuptial agreement and a postnuptial agreement is that the former is created prior to marriage, whereas the latter is created post-marriage.

What Information Is Contained within a Postnuptial Agreement?

Postnuptial agreements are used to outline the financial responsibilities, privileges, and details that are relevant to a marriage and to the parties of a marriage.

Examples of things that are typically found in a postnuptial agreement include:

  • How property will be divided in the event of separation or divorce;
  • Who in the marriage will control and manage property, including maintaining the right to sell property, transfer property, dispose of property, etc.;
  • Whether or not spousal support (alimony) will be part of a divorce settlement, and if so, what that arrangement will look like;
  • How a family business or other family property will be managed during the marriage and in the event of divorce or death;
  • Distribution of funds and assets to children from another marriage in the event of divorce or death;
  • The details of an estate plan, including agreements regarding the creation of a will or trust; and
  • Any other decisions related to financial matters.

As you can see, postnuptial agreements are used to resolve financial matters. They are not used to completely bar a spouse from being able to collect alimony in the event of divorce, ensure that only one parent will have custody of children in the event of a divorce, or list any ludicrous requirements of the marriage (such as that one spouse must vacuum the house every Thursday, or else).

What Cannot Be Included in a Postnuptial Agreement in Texas?

While most things, especially those related to financial agreements, are totally okay within a postnuptial agreement, there are a few exceptions.

Namely, agreements related to child custody or child support cannot be formed, nor can any agreements or arrangements that are illegal or unconscionable.

For example, a judge may find it unconscionable if the terms of a prenuptial agreement completely bar a spouse who did not work and had given up their career in order to stay home with young children from receiving spousal support in the event of a divorce.

Requirements for Postnuptial Agreements

How the agreement is formed is also important. If the agreement is not formed in compliance with the following criteria, a judge may declare it invalid at a later date:

  • Both parties must fully disclose all assets and debts;
  • Both parties must be legally capable of entering the agreement;
  • Both parties must enter the agreement voluntarily– if the agreement is entered under fraud or duress, it is not valid;
  • The agreement must be in writing; and
  • The agreement must be signed by both parties.

To draft a valid post nuptial agreement in Texas, it’s always best to consult an experienced family attorney. Your attorney can help you identify specifics to your marital situation that you had not considered. In addition, your attorney will check that you and your spouse comply with postnuptial agreement requirements.

What Are the Benefits of Forming a Texas Postnuptial Agreement?

Forming a postnuptial agreement may not sound like the most romantic thing that you can do for your marriage or your spouse, but in truth, working together to form a postnuptial agreement can actually help to foster a culture of communication and cooperation in your marriage – forming a postnuptial agreement is a big deal, and will require that both of you work together.

In addition to the practice in compromising that the formation of a postnuptial agreement will surely demand, other benefits of forming a postnuptial agreement include:

  • Providing clarity about the expectations of the marriage in terms of management of finances;
  • Ensuring that you will receive spousal support in the event of divorce (which may be especially important if you are planning to give up your own career as a result of the marriage);
  • Protecting the inheritance rights of children and grandchildren from another marriage;
  • Protecting yourself from paying an excessive amount of spousal support in the event of a divorce;
  • Protecting a family business or other important family property from being subjected to division in the event of divorce or death; and
  • Protecting a party from incurring the debt of their spouse.

In addition to these very practical benefits of a postnuptial agreement, consider that when you form a postnuptial agreement, which you will do with your spouse at a time in your marriage when cooperation is possible, you mitigate the contention that often accompanies a divorce.

Indeed, if you and your spouse do decide to divorce, the terms of the divorce (with the exception of child custody and child support) will already be spelled out. This will also allow you to expedite the divorce process, minimize high lawyer and court fees, and move forward with as little stress as possible.

When Might You Want a Postnuptial Agreement?

You might consider a postnuptial agreement if you encounter any of these circumstances during your marriage:

  • When your spouse starts accumulating debts, as in compulsive shopping or gambling;
  • When you are seeking marriage counseling;
  • When a spouse has breached your trust but you are trying to make things work;
  • When either of you pursues a new business;
  • When one spouse receives a substantial inheritance;
  • When one spouse is contemplating giving up a career to care for children;
  • When you buy a luxury home or make any substantial purchase; and
  • When you married quickly and didn’t take time for a prenuptial agreement.

While some of these circumstances present risk factors for divorce and others don’t, a postnuptial agreement doesn’t doom your marriage to failure. In fact, a postnuptial agreement can take financial worries off the table, giving you and your spouse the freedom to resolve other differences in marriage counseling.

Smart financial planning doesn’t mean that you are giving up on your marriage. If your spouse has reservations about a postnuptial agreement, encourage them to seek a family attorney of their own so that their best interests are represented too.

Why Do I Need to Work with a Lawyer When Forming a Postnuptial Agreement in Texas?

There are a number of do-it-yourself Texas postnuptial agreement forms that you can find online and file on your own, but this is not recommended.

When you form your postnuptial agreement on your own without legal counsel, there is too much room for error, and you may not know what to look for or what provisions to include to protect your best interests. In fact, in many cases, it is advised that you and your spouse are both represented by your own attorneys.

One of the biggest parts of forming a postnuptial agreement that is valid and enforceable is ensuring that both parties fully disclose their assets and debts. An attorney can thoroughly analyze your finances to ensure this requirement is satisfied.

Filling out a postnuptial agreement with an online form may save you money in the short term. However, it could cost you significantly in the event of divorce or other estate disbursement. If you make a mistake on your postnuptial agreement, your entire estate plan could be thrown out. It is usually much smarter to use a skilled family attorney who will make sure that your best interests are detailed in a valid postnuptial agreement.

Call the Law Office of Ben Carrasco Today

To guide you through the process of creating a postnuptial agreement that is valid and enforceable, please contact our experienced family law firm today. Our postnuptial agreement Texas legal team hasyears of experience, and we are ready to start advising you immediately.

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FAQs

Does Texas recognize a postnuptial agreement? ›

In Texas, a postnuptial or marital property agreement is acceptable in court as long as it meets the proper requirements. Each party should obtain a lawyer and a neutral third party, preferably another lawyer, to look over the draft before finalizing.

What Cannot be included in a postnuptial agreement? ›

In fact, prenuptial and postnuptial agreements can only include information about financial matters and so should not include terms related to family matters, physical arrangements, or employment.

How do you do a postnuptial agreement in Texas? ›

Requirements for Postnuptial Agreements

Both parties must be legally capable of entering the agreement; Both parties must enter the agreement voluntarily – if the agreement is entered under fraud or duress, it is not valid; The agreement must be in writing; and. The agreement must be signed by both parties.

Do post nuptial agreements hold up in court? ›

Get it in Writing California law requires that post-nuptial agreements adhere to the same requirements as other legal agreements. Thus, any post nuptial must be written and properly executed in order to be enforceable in court.

Can a postnuptial agreement protect inheritance? ›

When you are already married, you still have options to protect inherited assets. You could sign a postnuptial agreement with your spouse. This type of agreement is similar to a prenup and addresses similar topics. You could opt to sign a postnup after marriage, agreeing to keep the inheritance as separate property.

What can be included in a postnuptial agreement? ›

What Is Typically Included in a Postnup? Each postnuptial agreement is different and can be tailored for each couple. The agreement typically includes decisions about each spouse's assets, alimony and maintenance expectations, and plans for other payments like the other spouse's legal fees and child support.

How long does postnuptial take? ›

On average, putting together a postnuptial agreement for a high-asset couple will take two to four months. As with any contract, proceed deliberately, and never sign any agreement in a hurry and without legal and financial advice.

How does a postnup work? ›

A postnuptial agreement is a contract created by spouses after entering into a marriage that outlines the ownership of financial assets in the event of a divorce. The contract can also set out the responsibilities surrounding any children or other obligations for the duration of the marriage.

Can you get a prenup after marriage in Texas? ›

You can still sign a postnuptial agreement (or postnup), which achieves the same goals as a prenup in most cases. Prenups are a common step before marriage. Texas community property rules are the reason why prenups are common in Texas.

How do I get a prenup in Texas? ›

To be a prenuptial agreement the prospective spouses must complete and sign the agreement before the marriage. (The spouses can enter into a similar agreement after the marriage called a postnuptial agreement.) A prenup becomes effective once the parties marry.

What is a fair postnuptial agreement? ›

Like a prenup, a postnuptial agreement spells out how a couple will divide their assets in the event of a divorce, but it is signed after the wedding—sometimes years afterward.

Can a prenup protect 401k? ›

A prenuptial agreement can protect your 401(k) and other assets in a divorce.

How can I protect my future inheritance from divorce? ›

Prenuptial and Postnuptial Agreements are the strongest way to protect your separate property from your spouse. Your separate estate and any potential inheritance, or gift, can be clearly defined in an agreement along with rights and responsibilities of both spouses in the event of a divorce.

What nullifies a prenup? ›

The signing party must have full knowledge of the other spouse's property, assets and debts. If it is alleged that the party hid assets from the signing spouse at the time that the prenuptial agreement was created, or that the contract contains falsified financial information, this will void the agreement.

Does prenup protect future assets? ›

Yes, a prenuptial agreement can protect future assets. Those are common provisions you would put in to a prenuptial agreement. If there's the possibility of divorce I advise my clients to make that prenuptial agreement as ironclad as possible. You want to keep premarital accounts separate.

Which is better prenup or postnup? ›

A prenup is more likely to be enforceable than a postnup if one of the signers attempts to dispute it following dissolution of the union. Divorce courts tend to presume that coercion is less likely when independent people are signing before they are actually married and have mixed their assets.

What is the meaning of post nuptial? ›

Definition of postnuptial

: made or occurring after marriage or mating.

What is the difference between a prenuptial agreement and a postnuptial agreement? ›

A prenuptial agreement (or prenup) is a contract that a couple enters into prior to marriage that outlines all the terms of divorce in the event of dissolution. A postnuptial agreement (or postnup) is simply a prenup that is created after the marriage takes place.

How long does it take to draft up a contract? ›

How Long Does It Take to Draft a Contract? The amount of time it takes to draft a contract ultimately depends upon your specific needs. A basic, one-page agreement could take a few days, whereas a lengthy, complex document could take several weeks or months.

How much money should you have to get a prenup? ›

Prenups can cost anywhere from $1,500 to $10,000, depending on how complicated they are.

How much does a prenup cost in Texas? ›

Although it can vary from lawyer to lawyer, in Texas, a prenuptial agreement costs an average of $1200. And to be most effective, a prenup should just be a part of an estate planning package – a will or trust, a living will, and powers of attorney. Those documents cost an average of $1,500.

How long before a wedding should a prenup be signed? ›

11. How long before a wedding should a prenup be signed? A prenuptial agreement should be signed at least 28 days before the marriage with all assets and property owned by both parties disclosed.

What makes a prenup invalid in Texas? ›

Agree must be signed after parties know the finances.

The prenuptial agreement must be signed after both parties know both person's finances. If the prenuptial agreement you signed was both unconscionable and was marked without the other spouse's financial state, then the contract can be declared invalid.

What invalidates a prenup in Texas? ›

A married couple can modify or invalidate the initial agreement by entering into a subsequent agreement, in writing, that disavows or alters the prenup. Both parties have to agree, and the new agreement must be in writing.

How well do prenups hold up in court? ›

Prenuptial agreements, if drawn up and executed correctly, are legally binding and are usually upheld in court. One recent, high-profile case, however, has shown that prenups are not always ironclad.

How long do you have to be married to get half of 401k? ›

There is no specific threshold for the length of a marriage that results in a 401(k) being divided equally. However, you will only get a share of the 401(k) contributions made during the marriage, since contributions made before marriage are considered separate properties of the spouse.

Does a prenup affect Social Security benefits? ›

The short answer is that a prenuptial agreement has no impact on a spouse's claim to 401(k) plan assets because it does not satisfy the applicable spousal consent requirements of Internal Revenue Code Section (IRC §) 417(a)(2) and Treasury Regulation Section (Treas.

Do I have to give my wife half of my 401k? ›

In California Law, marital assets and retirement plans must be divided in half. This state community property rule means that the non-participating spouse shall receive 50% of the retirement plan value accumulated during the marriage.

What is the difference between post nuptial agreement and separation agreement? ›

Post-nuptial agreements are made after the parties are already married. Separation agreements are a form of a post-nuptial agreements but have the added element that the husband and wife may become legally separated after the execution of the document.

What is the difference between a prenuptial agreement and a postnuptial agreement? ›

A prenuptial agreement (or prenup) is a contract that a couple enters into prior to marriage that outlines all the terms of divorce in the event of dissolution. A postnuptial agreement (or postnup) is simply a prenup that is created after the marriage takes place.

Are postnuptial agreements valid in Washington state? ›

Postnuptial agreements is a relatively new concept and it does not have the amount of precedent to provide a solid ground for enforceability. In Washington State the courts have enforced postnuptial agreements provided they meet certain standards.

What is a post nuptial agreement NC? ›

What Is a Postnuptial Agreement? A postnuptial agreement is a legal contract executed by spouses during the marriage, while they are living together. The contract typically addresses matters relating to asset property division and spousal support in the event the couple decides to separate and divorce.

Are post nuptial agreements binding in NC? ›

NORTH CAROLINA POSTNUPTIAL AGREEMENTS

Many people, however, are unaware of the third type of contact: postnuptial agreements. As with separation agreements, postnuptial agreements are binding contracts that are executed by and between married people.

Can you get a prenup after marriage in NC? ›

As we mentioned earlier, North Carolina law says you can only sign a prenuptial agreement before you get married. However, if you're looking for ways to protect your assets after you've already gotten married, a postnuptial agreement is a good option.

Can a wife claim her husband property in divorce? ›

When a marriage under the customary law is been dissolved, the woman has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.

What can a wife claim in a divorce? ›

Assets that you have built up or acquired during the period of marriage are known as matrimonial assets or marital assets. These typically include property, pensions, savings, personal belongings, and cash in the bank.

Does a prenup protect future assets? ›

Yes, a prenuptial agreement can protect future assets. Those are common provisions you would put in to a prenuptial agreement. If there's the possibility of divorce I advise my clients to make that prenuptial agreement as ironclad as possible. You want to keep premarital accounts separate.

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