Prenuptial agreements are becoming more common in couples preparing for marriage taking advantage of the opportunities these documents create for them as they lead into marriage. We commonly know of premarital agreements as prenups Anne our culture. We also know that prenups have a particular reputation for being wealthy, famous, or simply greedy. However, I am here to tell you that this is not the case. Instead, people of all different backgrounds band income tiers can benefit from drafting a valid prenuptial agreement.
A prenuptial agreement establishes the property and financial rights for both you and your fiancé before you get married if a divorce occurs. This way, you do not have to go through a difficult divorce in the negotiations that come along with it regarding the property. The most straightforward way to think about divorce is that it is an excellent way to turn a marriage into a business transaction. If this idea makes you uncomfortable, then a prenuptial agreement may make a lot of sense for you and your family.
People think that by Drafting or even thinking about drafting a prenuptial agreement, you will invariably create a circumstance where You will get a divorce. This could not be farther from the truth. To say that drafting a prenuptial agreement is asking for a divorce to occur would be like saying drafting your will would be like asking for you to die. This is not a perfect comparison, given that all of us will pass away at some point, yet there is no guarantee of a divorce. I think the comparison still works. Simply going into drafting a legal document does not mean that you are going to get divorced. In fact, because of all of the conversation around drafting a prenuptial agreement, I think you may be less likely to get divorced because you went through the trouble of preparing a prenuptial agreement.
With that said, I think it still makes a ton of sense for you to consider a prenuptial agreement. This is true if for no other reason than to avoid having difficult conversations with a spouse you are working to divorce. These are not topics that are easily worked on between people who are even on good terms. Throw into the context of a divorce, and you and your spouse will have your work cut out for one another. Why not take advantage of the opportunity to establish property rights and plans before your marriage even begins? new paragraph
Why can prenuptial agreements be beneficial?
There is a wide range of reasons why a prenuptial agreement may make sense for you and your fiancé. Generally, prenuptial agreements protect assets that could be subject to Community property laws. This means that if you have a property that may be divided in the divorce that you do not want that to occur and then a prenuptial agreement could make a lot of sense for you likewise if you have a separate property asset that you would like to be divided then a prenuptial agreement allows you to take that asset imposition it to be classified as Community property if you were to get divorced.
Debt has increasingly become a common factor in many divorces. Whereas prior generations were less comfortable taking on large amounts of debt, the fact is that Our age is much more comfortable with borrowing money to pay for various forms of property period from our homes to our businesses, to even making everyday purchases online finance companies are neatly positioned to be able to create significant disruptions to a divorce. Usually, death will stick with the person who took them out. However, a family court judge is free to divide your debts in any way that they see fit based on principles of equity.
If you have been married before then, it may be the case that you would like to protect assets from being potentially divided in your divorce. You may be asking yourself how property owned before your upcoming marriage may be divided in the divorce. The reality is that strange things can happen in a divorce, and your fiancé may try to utilize any advantage they can find when dividing property. If you would like your specific property to remain with you after a divorce for your children and grandchildren, then a prenuptial agreement can be an excellent way for you to see to it that this happens.
As we just mentioned, a prenuptial agreement can, in many ways, double as an estate planning device. You should always have a will and should not rely solely upon a prenuptial agreement to determine where your property goes after death. You can look at a prenuptial agreement as to the first step towards the state planning matters. Besides, you will need to update your will, given that you are getting married. Why not use the opportunity to protect property and assets that you own while also correcting your choice?
We have already talked about how a prenuptial agreement can go a long way towards helping you prepare your property for division in a divorce. Even in a simple divorce, the property division can end up being rather complicated and tedious. You can take advantage of having a clearer mind at the beginning of marriage than having a clouded mind at the end during a divorce. From having worked with many people who have gone through divorces, I can tell you that even the most reasonable and levelheaded among them have had trouble when it comes to negotiating the finer points of a divorce. Do not fool yourself into thinking that this cannot happen to you.
To be unclear is to be unkind. That is one of my favorite sayings that I strive to embody with my family and clients alike. It does not make sense to go through a problematic force for no other reason than you and your spouse were unclear on your goals and concerns regarding finances. I have found that drafting a prenuptial agreement can go a long way towards helping people understand more about their future spouse, which likely reduces the likelihood of a divorce. While I cannot promise you that this will be the case for your family, I have seen it happen enough where it makes a great deal of sense to me.
What are some pluses and minuses associated with prenuptial agreements?
In the interest of Full disclosure, I would like to provide you with some information about why a prenuptial agreement may not be in your best interests. We have already talked about how a prenuptial agreement can enhance your estate planning in multiple ways. However, I think it’s relevant with that to notice not having to go to court for estate planning matters is a significant reason in and of itself. Do not underestimate just how tedious, time-consuming, and expensive going to court for any reason can be. If drafting a prenuptial agreement makes sense in terms of establishing property rights in your marriage, then it may also make sense for helping to reinforce principles that are included in your will.
Suppose you and your fiancé are like many couples, then you have basic understandings of how you want to live your life together. These essentially boiled down to oral agreements that each of you takes seriously. However, the trouble with these kinds of oral contracts is that either one of you can go back on your word or change what you previously agreed to. This happens all the time. People changing their minds and how they behave and treat their spouse is among the most frequent reasons for getting divorced. So, how can a prenuptial agreement change the course of this discussion for the better? By putting your plan down in writing and signing your name to it, there is a great deal more authenticity and enforceability of which you had stated in the prenuptial agreement. As a result, your house would be bound by what is included in the prenuptial agreement regarding establishing property rights and duties. On the other hand
If you are fortunate enough to be part of a family business, then the plan may be for you to eventually take over the company’s day-to-day operations if you have not already done so. Especially in situations where the business has been in your family for many generations, the ultimate plan may be to pass that business to your children so that it can stay in your family exclusively. Strange things can happen in divorce, and by getting married and your spouse may be able to argue that a portion of your family’s business became Community property. This could destroy any chances of your business remaining solely in your family. Hypothetically, your spouse could sell their portion of the company after your divorce and open the business up to other persons working within the day-to-day operations.
If this is something that you would like to avoid, then a preemie marital agreement may be precisely what the doctor ordered. In this way, you can determine ahead of time that all aspects of the business are to remain your separate property no matter what in the event of a divorce. At the same time, you may choose to designate a percentage of your income earned in the job as community income that is not required either. Depending upon the other factors in your case, it is conceivable that your spouse may be awarded a portion of the business even if they never played a role in the day-to-day operations.
Another factor that encourages people to draft end to negotiate prenuptial agreements is about that. Many people who get married enter marriage with a significant amount of debt. While the easy answer to this issue is that all the debt is separate property and therefore not divisible the divorce, the reality is that A judge can divide that taken out during the marriage in many ways. If you want to shield your spouse from even the possibility that there may end up on their plate after the divorce, then a prenuptial agreement is a great way to get there.
While you may not want to get a prenuptial agreement
As with many things in life, there are advantages and disadvantages to prenuptial agreements, as well as reasons why you would potentially not want to consider having one drafted before your marriage.
Even before getting married, you were discussing topics like this may take the bloom off the rose of your relationship. Well, I think it is beneficial for couples to be discussing finances in-depth before getting married. You may disagree with me. Talking about the ends and outs of your financial plan with your spouse may cause you to view the relationship in a completely different way. But used to be a find and carefree relationship that may suddenly become much more real. Depending on your point of view, this could be something that harms your relationship in the long run.
Next, you may include items in your prenuptial agreement already covered by marital property and Community property law in Texas. Having a prenuptial agreement makes sense when you devise a plan to get around Community property law in Texas. You and your spouse can establish your expectations and reality for the division of property upon divorce. In this case, going through the time and expense required to draft a valid prenuptial agreement properly may be highly beneficial. However, if your financial planning falls in line with existing Community property law, you may not see much benefit in doing so. Therefore, you should speak with an experienced family law attorney before deciding either way. You may find that the trouble of a prenuptial agreement is not necessarily given state law in your specific circumstances.
One of the things that many people are surprised to learn about prenuptial agreements is that they cannot preplan much of anything having to do with child custody or child support. This is the case. You and your fiancé cannot properly plan for these matters because you cannot tell the future in terms of your resources and the needs of your children. Even if you already have a child together, you have no way of knowing what could happen to them over the next few prior doors. There’s severe to agreeing to a certain amount of child support or a specific custody plan at this stage would be irresponsible.
Another relevant aspect to discuss is that a judge in the future may declare certain parts of your prenuptial agreement to be invalid. For example, we have already talked about how including language regarding child support in a prenuptial agreement is not a good idea. Additionally, a family court judge could declare parts of your agreement invalid based on fairness principles. Without knowing any of this in advance, the essential functions of your agreement may be declared invalid as a result. Again, all that work would be for nothing because it is not possible to submit a rough draft of a prenuptial agreement to a family court judge for their review.
Probably the best thing you can do if this is a primary concern of yours would be to hire an experienced family law attorney to help you negotiate and draft a prenuptial agreement. This way, you can receive guidance from the perspective of someone who has been there before regarding negotiation and drafting of the contract. Well, an attorney has no specific authority to enforce the terms of a prenuptial agreement. They can provide you with information about how a family court judge is likely to receive the document.
In general, it is best for both you and your fiancé to have representation while drafting a prenuptial agreement. Not only does that allow you to receive real-time advice on both the negotiation and drafting aspects of the case, but it goes a long way towards helping the document to be found enforceable by a divorce court, if necessary, in the future. Do not go through all the trouble associated with negotiating and drafting a prenuptial agreement only to find that all of your hard work did not pay off in the end.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.