Subsequent marriages present a myriad of complications, from blending families to complicated financial assets. After the dissolution of a first marriage, those considering marrying again may wish to prevent issues present in a first divorce by establishing separate property before signing a marriage license. For those considering remarriage, a prenuptial agreement can offer valuable protections for property owned before the marriage.
Defining and protecting assets
A prenuptial agreement allows spouses to contractually define property and how it will be divided in the event of a divorce or the death of a spouse. Prenuptial agreements can also govern the amount and terms of spousal support or alimony. However, an agreement cannot limit or define the amount of child support the paying parent would pay, as the child has the right to support regardless of any prior agreements made by the parents.
For parents bringing children from a prior relationship into the new marriage, a prenuptial agreement allows you to specify what assets from community or separate property you wish to pass on to your heirs upon your death. Prenuptial agreements can also provide protections when one spouse brings significant debts or when a partner brings considerable wealth into the union.
Enforceability considerations
For Texas courts to consider a prenuptial agreement legally enforceable, it must meet the following criteria:
- The agreement must be in writing.
- Spouses need to draft and sign the agreement before the marriage. Texas family law does allow postnuptial agreements, but they must meet different criteria.
- Both spouses must fully disclose all assets and liabilities.
A judge will not enforce prenuptial agreements signed under duress or deemed unconscionable. A judge may deem an agreement unconscionable if any of the following apply:
- A spouse did not voluntarily waive, in writing, the right to financial disclosure.
- A spouse failed to disclose all assets and debts.
- A spouse did not, or could not have had, knowledge of the other spouse’s liabilities or assets.
To ensure legal compliance, spouses should enlist the help of a family law attorney with the drafting and review of prenuptial agreements.
