Texas is a community property state, which means that there is a presumption that assets are community property, not separate property of a spouse. To overcome this presumption, one must be able to definitively show to a court that an asset was acquired before the marriage and has maintained its characterization as separate property. The key to maintaining the character of your property as separate is to avoid commingling the property with community property.
A prenuptial agreement is a contract made between two parties who intend to be wed. This agreement outlines many provisions, usually related to finances and property, which the parties want to agree to prior to being married. Such agreements may include:
- The rights to property owned prior to being married;
- The right to spousal maintenance or the elimination of spousal maintenance should the marriage end;
- The characterization of property acquired during the marriage.
Prenuptial agreements can be useful for parties with significant assets. A prenuptial agreement must be signed by both parties as well as notarized by a notary prior to being filed in the couple’s county of residence. A prenuptial agreement may be amended or terminated by the parties after the marriage.
A prenuptial agreement may be invalidated for one of the following reasons:
- The agreement was not signed voluntarily;
- The agreement was unconscionable when signed;
- Prior to signing the agreement the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party; and did not have or could not have had adequate knowledge of the property or financial obligations of the other party.
The parties may also agree to revoke the premarital agreement. This must be done by drafting a formal written revocation signed by both parties.
Premarital agreements can be difficult to draft and the intricacy of the drafting makes it very important that you retain a competent family law attorney that can assist you in drafting an enforceable premarital agreement.