When it comes to a document like a premarital agreement, getting the agreement drafted and signed by you and your fiancé is only half the battle. The other half is ensuring that the document which you have drafted is enforceable in a court. Otherwise, all you have done is spend some time and money coming up with an agreement that is not worth the paper that it is printed on. Instead, you want all of the efforts that it took to draft the agreement to be worthwhile for you and your family. Today’s blog post is intended to help you do just that.
What can happen if you don’t make a prenuptial agreement? If you choose not to make a prenuptial agreement, then the state laws regarding property ownership that you have acquired during your marriage will play in any potential divorce case. You may already know that Texas is a community property state. This means that the marital property laws of Texas assume that all property owned at the time of your divorce is owned equally by you and your spouse. It doesn’t matter who purchased the property or whose income was used to purchase the property. All that matters is the property came into being at the time of your marriage.
This can be a problematic presumption to overcome lacking other evidence. For that matter, the property you own will have a vital role depending upon the length of your marriage. For instance, if your marriage ends up being a rather long one, then it is likely that you would have acquired a great deal of Community property. This means that the property in question can and will be divided up in your divorce case. This can present issues as far as making sure that the property goes to the person you would like it to in your divorce case. Many people in your shoes would prefer property of certain types to go to your children after your passing rather than to your spouse in a divorce case.
If any of these circumstances sound relevant to your life, then you should seriously consider the benefits of a premarital agreement. The more effort you put into planning for the end of your life or the end of your marriage through divorce, the greater the likelihood that you will be able to see to it that your wishes come into being. This is as opposed to the state of Texas determining where your property goes later in life, or you and your spouse have to make determinations like this during a heated divorce.
A premarital agreement benefits you, and your fiancé can negotiate through these subjects while you are on good terms and not going through a difficult divorce. The challenging part about dealing during a divorce is that you have to do so under adverse circumstances. Compare this to a situation where you and your fiance can work through these situations while you are on good terms with one another as you are preparing to get married. The feeling and temperature of the room will be much different in those types of circumstances.
How to best ensure that your premarital agreement is valid?
As we discussed at the beginning of today’s blog post, you need to work diligently toward making sure the agreement you and your fiancé draft are enforceable in a Texas family law court. Otherwise, all the work you would have put into negotiating the deal would not have amounted to much. After all, you want to do your best to see that all of your efforts turn into a benefit for you and your family. It would be incredibly frustrating to have spent time and money drafting a document that cannot hold up in a court.
In general, I believe that most family court judges look favorably upon premarital agreements. In a way, these documents do a great deal of good in that they limit the amount of material that a family court judge has to make decisions on In a trial. You probably are aware that family court dockets have been bursting at the seams for many years. That trend has only heightened as a result of the COVID-19 pandemic. You and your fiancé are better off determining issues like this between yourselves rather than waiting for a potential divorce trial. If nothing else, you are keeping A judge from having to make decisions That they may not be well-positioned to do so.
Another factor that likely can impact how a family court would look at your premarital agreement is the nature of how it was entered into. When you and your spouse both had attorneys advising you throughout the premarital agreement negotiation process, then a future family judge would likely look at the agreement as fair and equitable more often than not. The reason why I say this is because when two people have hired attorneys to advise them on the negotiation of a document, that means a certain degree of credibility to the process in the document itself; on the other hand, not having an attorney assist with the drafting the record may indicate that there was a possibility of fraud or coercion involved in the negotiation of the premarital agreement.
This is not to say that a family court judge would not look closely at the nature of going back to how your premarital agreement was drafted and negotiated. Even if you have the contract prepared with the assistance of an attorney, that does not mean that a family court won’t look at it with a scrutinizing eye. The negotiation process, as well as how you write the agreement, is critical. Just like if I was advising you regarding drafting a divorce decree or child custody orders, the language in your premarital agreement needs to be extremely clear. Can the language you include be construed to mean several things, or is the meaning of what you intended obvious?
Next, when we consider the language used, will you or your spouse have any issues understanding what the document means for both you and your family? Suppose a family court judge believes that the meaning of what you included could be construed in several different ways. In that case, likely, any sections of your premarital agreement that do not make immediate sense will be thrown out and not considered valid. This means that there could be several issues with the document, not the least of which means that you would have spent money in time drafting a document that holds no legal value.
Another consideration that you need to make is whether you had an attorney at least review your premarital agreement before signing it with your fiancé. You do not have to have an attorney assist you in drafting a premarital agreement. Instead, all you need to do is have a written contract that both you and your fiancé signed. As I mentioned, I think it is highly desirable to have an attorney to help guide you through this process. However, it is not necessary. With that said, consider having an attorney at least review what you plan on signing. It is even better if both you and your fiancé use separate attorneys to review the document in its draft phase. This will ensure that the law is being followed and that your objectives are being met.
In what situations is it brilliant to have hey premarital agreement? Obviously? I don’t know every circumstance involving you and your fiancé. You all may have a range of events that cause it to be a good idea for you to have a premarital agreement. With that being said, I would like to discuss with you a couple of generally common reasons why you may want to have a premarital agreement worked out with your fiancé before marriage.
Before we get into that, however, I want to mention again that in Texas, whatever money is made during the marriage is Community property. This means that no matter who the actual breadwinner in the relationship is that this money is yours just as much as your spouses, no matter who earned money from their work. For some people, getting married is not a big deal. However, for others, it is essential and can therefore be addressed within the premarital agreement.
In the absence of a prenuptial agreement, it is quite possible that a divorce court could distribute assets acquired during the marriage in an even fashion. This would otherwise be known as a 5050 split of your community estate. Your prenuptial agreement would be designed to protect what you bring into the marriage period. This would include any inheritance property or savings. Now that we have covered these subjects, we can understand what it means to negotiate a prenuptial agreement and why it might be beneficial for you and your family.
First, you should ask yourself if you bring significant assets into the marriage regarding inheritance from relatives or prior earnings that you believe need to be protected by the total exclusive agreement. Next, you can ask yourself do you or your future spouse have children from a prior marriage that may become concerned in the future about your or your spouse’s assets?
Many people associate premarital agreements as being only there to protect the spouse who has earned more money. However, this is not true. When a premarital agreement is drafted well, both spouses can retain an attorney to help negotiate and draft the document. At the same time, both you and your fiancé will be required to list all of your assets and debts that you have accrued before getting married. When both you and your fiancé have someone looking out for your best interests and advocating for your positions, then we run into a situation where the prenuptial agreement can work out to your benefit and that of your fiancé.
Another factor that I have heard people discuss when it comes to why it may not be a good idea to negotiate their prenuptial agreement is whether doing so will jinx the marriage. The argument would be that simply discussing matters like a premarital agreement prior two the beginning of your marriage will place an undue amount of pressure on the marriage itself and can lead to a premature divorce. In my opinion, this argument is tantamount to arguing that drafting a will can lead to your death. While divorce is not the inescapable reality of death, simply creating a will does not sign your death warrant. Drafting a premarital agreement does not mean that you are for sure getting divorced. Instead, premarital agreements often go a long way towards assisting with the maintenance of marriage.
I have found that communication in relationships is probably the most likely indicator of future success. What I mean by this is that if you and your spouse can communicate honestly about the most critical issues to you, you stand the most excellent chance of surviving the inevitable ups and downs that a marriage presents. Establishing an open line of communication with your spouse through negotiating a well-thought-out plan four premarital agreement is a great place to start.
No one is forcing you to draft a premarital agreement. However, by acknowledging the potential fault lines in a marriage, you can best avoid problems down the line. This is as opposed to ignoring those potential threats to the marriage and proceeding if they don’t, as if they don’t exist. In fact, by displaying a willingness to negotiate a premarital agreement, you and your fiancé may be able to show that you can withstand just about any challenge that you encounter regarding your relationship.
For instance, do you and your fiancé have an idea of how you will handle the paying of bills or other financial responsibilities of the marriage? Do you have a preference as to whether you will combine your finances or still have separate bank accounts? Does either of you have a history of family issues when it comes to finances? These are all relevant questions that can be hashed out during the negotiation of a premarital agreement.
Furthermore, you can look at these negotiation sessions as a type of pre-marriage counseling. Many couples choose not to undergo pre-marriage counseling to their detriment. I certainly would not recommend skipping some degree of pre-marriage counseling. This is true even if you have been in a relationship with your fiancé for many years; it still stands to be a benefit derived from communicating on this level in a structured atmosphere. Do not take these opportunities for granted. Instead, take advantage of them to see if there are any potential issues regarding your financial status.
To close out today’s blog post, I think it is worthwhile for us to consider how to begin the discussion of a premarital agreement with your fiancé. Above all else, this should not be a topic that you enter lightly. Even if you and your fiancé communicate well together, they should not be something that you take for granted. Be aware that your fiancé may have hang-ups or issues with this subject that you are not even remotely aware of. As a result, take into consideration the needs of your partner when working through these topics. You may find that the benefit you derive from negotiating on a premarital agreement goes beyond simply finances. You may be able to increase the depth of your relationship while minimizing the risk of divorce in the future.
As I have already mentioned, I think the most significant amount of benefit that can be derived from the drafting of a premarital agreement is done through the experienced hand of a family law attorney. Hiring an attorney to assist you in drafting a premarital agreement does not mean the same thing as hiring an attorney to help you with a divorce or child custody case. Namely, the commitment that you make to the attorney is not even remotely the same. Instead, you can work with an attorney to review the language of the document you negotiate with your fiancé or work with the attorney to help you with the negotiations themselves. Either way, the process does not have to be lengthy and can often be done for less money than you would think.
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 consultation 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 familylaw and how your family circumstances may be impacted by the filing of a divorce or child custody case.