Do You Need a Prenuptial Agreement in Texas?
Houston Prenup Lawyer on Legally Binding Agreements
A prenuptial agreement in Texas should be state-law specific. However, most premarital agreements from anywhere in the United States (or internationally) will generally be upheld as legally enforceable.
Prenup lawyer John K. Grubb has been working with soon-to-be spouses for over 30 years to draft and enforce premarital agreements and post-marital agreements. He and his team of Houston divorce attorneys can better explain how to get a prenuptial agreement in Texas.
What is a Prenuptial Agreement?
A premarital or prenuptial agreement is a contract between prospective spouses made in contemplation of marriage and to be effective upon marriage. Traditionally, premarital agreements were used when a high net worth individual or a high earner marries an individual with little property or low income. However, with the changing nature of our society, the number of individuals who enter into premarital agreements has broadened dramatically.
Approximately 50% of all marriages end in divorce. It is not uncommon to find two people who are in their 40’s, 50’s or 60’s who want to marry. Many of these couples divorced before or have children from prior marriages. Yet, these couple want to provide a degree of certainty regarding their financial future together. In addition, they want to protect their estates from each other’s children and to lay out a financial road map for their future. Also, business owners who have significant real property, income property, boats, yachts, airplanes, or who own sole proprietorships, partnerships, small businesses, or corporations, or professional associations frequently wish to enter into a premarital agreement. These agreements can then provide not only for the operation and management, but they also provide certainty upon their death or divorce.
Another growing trend for premarital agreements occur with young professionals deciding to marry. They are usually very accomplished people who wish to maintain their professional identity and separate professional practices. However, they also want to share life together. So, in order to accomplish this, they enter into premarital agreements. Also, many people have acquired substantial savings, 401k plans, 403b plans, defined retirement plans, profit sharing plans, employee stock ownership plans, or other employee benefits that they wish to keep separate from each other. Additionally, people who inherited property or received gifts, or who expect to inherit property or gifts, frequently wish to make provisions in a premarital agreement to protect their inheritance and gifts.
In Texas, in order to have a valid premarital agreement, it must be in writing and signed by both parties. We also recommend that you notarize the agreement, though you do not have to do so. Frequently, the spouses record the premarital agreement in the Official Real Property records in the county where the parties reside, or where they may own property.
In Texas a premarital agreement will be enforceable unless a party can prove that
- the agreement was unconscionable when it was signed and before signing the agreement, that party:
- the parties did not sign the agreement voluntarily; or
- 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 beyond the disclosure provided; and
- did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
The prevailing trend in Texas Family law has been that if a person knows that he or she is signing a premarital agreement, the court will deem that he or she voluntarily entered into the agreement. This is the case even if he or she felt pressured to enter into the agreement because of his or her particular circumstances. Additionally, even though a premarital agreement may be disproportionate, the courts tend to hold that it is still a valid agreement.
Children of the Marriage
Occasionally, parties will want to insert something in a premarital agreement concerning future children, custody or support. While such provisions can be very beneficial to the parties and may provide the court with guidance and direction, these provisions do not bind the court. Courts have a duty to decide child custody, visitation rights, and child support based upon what the court finds to be in the best interest of the child at the time the parties are before the court. In other words, if the court believes that any provision of the premarital agreement adversely effects child support, custody or visitation, and is not in the best interest of the child, then the court is simply going to disregard that provision of the premarital agreement. The court can then decide the case based upon what it believes to be best for the child.
Preparing for a Premarital Agreement
Before meeting with a Houston prenuptial lawyer, you should prepare some basic information for the attorney. For example, you will need biographical information for both you and your spouse. This will include your complete name, date of birth, social security number, drivers license number, addresses, employers, educational experience, business or professional experience, children’s names, sex, date of birth, etc. Then, you should prepare a summary list of the assets and liabilities for yourself as well as what you believe the assets and liabilities are for your spouse. You will also need to provide information regarding 401k accounts, 403b accounts, IRA’s pension plans, stock options, employee stock options, employee stock plans, annuities, life insurance and trusts. Additionally, you will need to identify for the attorney any inheritance or gifts that you have received in the past, and any that you expect to receive in the future. You should write out any questions in advance that may be particular to your case. These questions may include questions about a special needs child from a former marriage, a particular business arrangement, family business, etc.
You should schedule an appointment with the attorney as soon as you decide to get married. This will give the attorney an opportunity to fully explore the particulars of your individual situation. He/she can then draft an agreement that meets your specific needs. Then, he/she can forward it to your future spouse so that he/she may consult with an attorney of his/her choice. After your future spouse’s attorney reviews it, we can make any mutually agreed revisions to the agreement. I prefer to have the premarital agreement completely finalized and executed at least 30 days prior to the wedding. My experience has been that this substantially lessens stress upon the parties and the attorneys.
Need More Info on Prenuptial Agreements in Texas?
Do you want to make sure you have a prenuptial agreement that is enforceable in Texas? Then speak to a prenuptial agreement attorney with over 30 years’ experience. Attorney John Grubb also has an MBA in business and finance with a history of representing high-asset business professionals. You can call us directly to schedule a consultation.
John K. Grubb represents clients for drafting, reviewing and enforcing prenuptial agreements throughout the greater Houston, Texas area. This includes but is not limited to Harris County, Montgomery County and Fort Bend County.