Prenuptial vs. Postnuptial Agreements in Texas: What You Need to Know

When you’re happily in love and discussing marriage, or your financial situation has changed since you married, how do you approach the topic of a financial agreement? Although having a plan makes many marriages happier, your spouse could worry that you want a divorce if you ask for such an arrangement.

Below, family lawyer Tycha Kimbrough, Managing Attorney of Kimbrough Legal, PLLC., describes how planning for difficult times can strengthen your relationship with your partner by negotiating fair property division and debt responsibilities before a court decides in the event of a divorce process. With an established agreement, you and your partner can feel secure in your marriage.

Prenuptial Agreement vs. Postnuptial Agreements: What’s the Difference?

In either a prenuptial or postnuptial agreement, you and your partner determine which property and debts you will receive if you divorce. The only difference between a prenuptial and postnuptial agreement is when you and your spouse sign the agreement. You create a prenuptial agreement (or prenup) before you get married, whereas you draft a postnuptial agreement after you’re already married.

Both prenuptial and postnuptial agreements must have the following to be valid and enforceable:

• Both parties’ signatures, signed in the presence of a notary
• No implication of force or coercion for either party to sign
• Reasonable disclosure of agreement terms
• A clear understanding of assets owned by each party
• A fair division of property, assets, and debts

If you create the agreement before marriage, get help from a prenuptial agreement lawyer to ensure there are no legal issues with your document. Contact a postnuptial agreement attorney if you create the agreement after getting married.

Can You Include Terms for Child Custody in a Texas Prenuptial or Postnuptial Agreement?

While you can create terms for spousal support (commonly referred to as alimony) in a prenuptial or postnuptial agreement, you cannot outline terms for child custody.

You and your spouse may waive or limit spousal or child support in either a prenuptial or postnuptial agreement. If either party waives their right to pursue spousal support, they may not request such support in a divorce. If neither party wants to waive spousal support, you may choose to limit the amount you or your spouse will pay.

Several Texas laws exist around limiting or waiving child support. You should contact an experienced family lawyer to determine the best path forward for your situation, especially if you or your spouse have children from a previous relationship.

Why Should a Couple Create a Prenuptial or Postnuptial Agreement?

You and your partner should contact a knowledgeable prenuptial agreement lawyer at least six months before you get married if:

• You and your partner earn different levels of income
• You want to maintain ownership of a family heirloom or property
• You or your partner has a child from a previous relationship or receive child support
• You or your partner own a business
• You or your partner owe a large amount of debt
• You want to avoid a lengthy court process if you divorce
• You want to protect separate property
• You want to bypass specific Texas laws regarding property division
• You want to start your marriage with a clearly defined financial foundation
• You want to create a legal document to define specific arrangements between you and your spouse

Some couples get married before one spouse receives an unexpected inheritance or enters a high-income role in their career. Contact a postnuptial agreement attorney if you and your spouse are already married and your financial situation changes over time.

While many Texas couples worry that creating a postnuptial agreement leads to arguments that doom your marriage to divorce, that is often not true. Undiscussed financial discrepancies can cause more strain to a marriage than planning ahead to determine how you and your spouse would handle property division in the divorce process.

How Does Texas Handle Property Division in the Divorce Process?

The State of Texas considers most property and other assets acquired by either spouse during the marriage to be community property and has broad discretion to divide such assets in a just and right manner. That means a court can divide assets differently than how you and your spouse would want. The court can also divide debts between spouses, even if only one spouse incurred most of the debt.

By setting up a strategy session with an experienced family lawyer for legal advice on developing your prenuptial or postnuptial agreement, you can have a plan in place to make the complex process of divorce slightly easier.

Contact the Experienced Family Law Attorneys at Kimbrough Legal, PLLC.

If you and your partner or spouse need help with a prenuptial or postnuptial agreement in or around Travis County, TX, contact us today at Kimbrough Legal, PLLC. We are a community-focused firm that protects your children, assets, and peace. Let us support you throughout the process. Call us at (833) 553-4251 or contact us online to schedule a strategy session with an experienced family lawyer.