A prenuptial agreement, or a “prenup,” is a legally binding marital contract finalized prior to marriage, detailing what property belongs to each party upon entering the marriage and who will have management rights over that property. A prenup will usually only include the property and debt a spouse has prior to marriage, since anything gained during the marriage is typically considered community property.
While parties can agree to almost anything by contract, prenups cannot be used to adversely affect child support obligations, defraud creditors, waive a prospective spouse’s benefits in an Employee Retirement Income Security Act (ERISA) retirement plan, and cannot violate public policy or a statute imposing a criminal penalty.
Steps To Premarital Agreement Creation
When creating a premarital agreement, you will need to take the following steps:
Negotiate the Terms
Sometimes, one engaged party will handle putting together the prenuptial agreement themselves. However, in an ideal scenario, the two parties will get together with their own independent attorneys to outline the terms of a prenuptial agreement. Parties will negotiate and plan for the division of assets and debts, both now and in the future.
Hire a Lawyer
While it is legally permissible for only one side to use a lawyer in drafting a prenuptial agreement, both future spouses should retain their own attorneys to ensure the contract is fair to both sides.
Make Financial Disclosures
Each party should disclose all of his or her property and debts to the other side. Including a Waiver of Financial Disclosures both in the actual prenup and in a separately executed document avoids the necessity of future financial disclosures and protects the parties from potential challenges to the prenup in the event of a divorce.
Execute the Premarital Agreement
The terms of the agreement should be in writing and signed by both future spouses before a Notary Public. A premarital agreement does not go into effect until you are married. If you want to change anything in it after you are married, you must agree in writing about any amendments or revocations, and both of you must sign it.
Powers of the Prenup
A Texas prenuptial agreement can:
- Assist in determining how property and debts will be divided in a divorce, overriding state law.
- Safeguard one spouse against the other’s debts accumulated before marriage.
- Preserve family fortunes for children from an earlier marriage.
- Predetermine the parties’ rights and duties during marriage.
- Ensure a particular religious upbringing of a child.
- Specify homestead rights.
- Keep your estate secure.
- Outline spousal support.
Travis County Premarital Agreements
If you are getting married and need a premarital agreement, or if you are facing a divorce, a skilled Texas family law attorney can help. Our team of experienced attorneys can handle any family law matter. If you need to have a prenuptial agreement drafted, reviewed, revised, enforced, or if you have questions or concerns about any family law matter, contact The Law Office of Ilana R. Tanner today.