What is a Prenuptial Agreement? Do I Need One?
A prenuptial agreement, or prenup, is a written contract signed by two people in contemplation of marriage that sets forth what their assets and debts are and how these matters will be divided at the end of the marriage. If you are “young and in love,” you probably do not need a prenup. However, in this day and time, many people enter marriage when they are not so “young and in love.” When a couple marries and has a child or children from a previous relationship, has obtained valuable property or owes a significant amount of debt, a prenup is needed. A prenuptial agreement addresses the issue of what will happen when the marriage ends, whether by divorce or death. Texas law presumes all property owned by the parties is community property to be divided by the Court, whether in a divorce proceeding or in a probate Court. However, not all property is community property. Oftentimes couples have “separate” property. Separate property is property a person owned prior to marriage, property received as a gift and inherited property. Debt is also treated as separate in many instances and is called “separate debt.” A prenup protects you and your separate property from the very beginning, so, should a divorce or a probate matter occur, your assets are protected.
How Can I Prove My Separate Property is Mine?
When a marriage ends, a spouse must prove by “clear and convincing evidence” that the property claimed to be separate property truly belongs only to him or her. Sometimes that is difficult to do years later if records are no longer available. When memories fade over time or the owner of the property passes away, the executor has no way to prove the property was indeed separate property. A prenup solves this problem by setting out exactly who owns what and how it will be divided at the end of the marriage.
How Much Will I Pay to Prepare a Prenup?
The fee charged is based on an hourly rate. The more time spent drafting the document, the more it will cost; the less time spent, the less it will cost. Each person’s situation is unique and requires individual consideration. When extensive assets or debts are involved, it can cost more than a standard, run-of-the-mill agreement. Generally speaking, most people should expect to spend about $1,500, although it can be more for other extensive prenups. It is far more economically sound to execute a prenup when compared to the legal fees that could be incurred at the end of the marriage in the division of assets and debt.
Will the Court Enforce a Prenuptial Agreement?
A prenup is a legally binding contract, and the Court will enforce written contracts. However, as with any contract, there are defenses and pitfalls that pose a threat to such agreements. Securing a legal professional to assist you will greatly reduce the possibility of the Court failing to enforce the agreement and will sidestep common pitfalls.
Is There a Postnuptial Agreement?
Amazingly enough, there is a postnuptial agreement, only we don’t call it a “postnup.” We call it a partitioning agreement. A partitioning agreement divides assets and debts between married couples, so if you did not wish to do a prenup and decide to address this issue after marriage, you can do so. However, in every partitioning agreement, there is a clear risk of losing or signing away valuable legal rights when the agreement is executed. You should ask yourself why you or your spouse would desire to be in that position. Of course, the answer is that you do not and neither does your spouse, thus it may be too late.
The information provided herein is given for general prenup information only. The information presented should not be construed as formal legal advice or the formation of an attorney-client relationship.
Where Can I Get Help with a Prenup?
We urge you to call the family law attorneys at Burrows Law Group to set up a time so we may discuss your situation and determine if a prenup is right for you. The consultation fee is capped to a maximum of one hour of billable time, even if we talk more than an hour. Do not put this off simply to avoid an unpleasant topic. It is a decision too important to dismiss prior to your upcoming marriage.