By John K. Grubb, Attorney
5005 Riverway Drive, Suite 450
Houston, Texas  77056
713-877-8800

CAN YOU DO YOUR OWN?

Can you draft your own premarital agreement?  Yes, and you can do your own automobile repairs, drive a racecar, and fly an airplane for the first time, all on your own and without any experience or training (if you can find anyone foolish enough to rent you a racecar or airplane, of course).  Unfortunately, doing your own prenup is about like trying to do any of the above without proper training — you’re probably going to crash and burn.

ATTORNEY

Can any attorney do a prenuptial agreement?  Technically yes.  However, like many things in life, there is a trend toward specialization or limiting one’s practice.  Some attorneys are more familiar with prenuptial agreements than others.  Additionally, most attorneys will not do an agreement for both parties.  There is an inherent conflict of interest in representing both parties.  Typically, one party will hire an attorney to do a prenuptial agreement, and that attorney will then send it to the other party and the other party can secure the services of his or her own attorney, or choose not to seek counsel at all.

WHAT DOES IT COVER?

A premarital agreement should cover whatever you and your spouse want to set forth in writing about your financial affairs.  Typically, it will provide that property that what you brought into the marriage will remain as your separate property, along with the income thereon.  Frequently in today’s double-educated/double-income marriages, both parties have good earning capacity, and they wish to provide that their income is to remain separate property.  It can provide for housing, spousal maintenance/alimony, death benefits, estate provisions, or any other reasonable provision that two parties think is necessary to put in writing.

WILL IT HOLD UP?

Many people do not enter into a prenuptial agreement, or premarital agreement because they believe that the agreement will never hold up in court. This is not true. Prenuptial agreements are now routinely upheld by courts. Most states have adopted the Uniform Premarital Agreement Act. This Act provides that premarital agreements are enforceable unless “the party did not sign the agreement voluntarily,” or “the agreement was unconscionable when signed, and before signing the agreement: the party was not provided with 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 beyond the disclosers provided, and did not have, or reasonably could not have had adequate knowledge of the property or financial obligations of the other party.” Looking closely at the wording of the Uniform Premarital Agreement Act, most courts have concluded that only in truly extraordinary circumstances would they refuse to uphold a premarital agreement.

If you leave something out, a premarital agreement can be amended or modified in the future.  Most premarital agreements provide that they may be modified only in writing.  This is to eliminate any misunderstandings.

For additional information about premarital agreements contact John K. Grubb & Associates, P.C.