T
exas law allows two people who intend to get married to sign a premarital property agreement. This is also known as a “prenup” or “prenuptial” agreement. These agreements are often signed in the months or weeks leading up to the wedding, which is a hectic time for many couples. Given the happiness of the moment, some couples believe that they can share a lawyer to draft this agreement. Given the importance of these documents, we recommend that each party have his or her own attorney. This post will explain some of the reasons why having your own attorney is important.
Texas law allows two people to make nearly any agreement about their property and future support. These agreements can affect the rights of parties in the event of a future divorce or the death of one spouse. For instance, without a premarital agreement, one of the spouses may be eligible for spousal support for several years after a divorce. A premarital agreement can waive spousal support forever, regardless of how long the parties remain married. Texas is a community property state, meaning that all property acquired during the marriage is community property. The prenup can alter this. It can state that there will be no community estate. A premarital agreement can waive all future rights to valuable retirement benefits, homes, savings accounts, and all other property.
Premarital agreements affect each spouse differently. If one spouse owned significant resources before marriage or is a high-income earner, she may wish to protect the assets she earns in the event of divorce. On the other hand, if one spouse is a stay-at-home parent, he may be negatively affected by a premarital agreement that would leave him with few financial resources in the event of divorce. This is why having your own attorney is important. Spouses who sign these agreements have conflicting interests, and an attorney should only advocate for one client at a time.
Texas law makes it extremely difficult to challenge a premarital property agreement. In many instances, the spouses will be married for many years and their financial circumstances will change dramatically after they sign the agreement. However, a change in circumstances is not a basis to set aside a premarital agreement. If the person is the spouse with less financial assets, it is important during the negotiations to obtain some guarantees in the agreement about future support.
In some rare circumstances, a party can challenge the enforcement of a premarital agreement. The only bases for challenging the agreement involve over-reaching by one party, fraud, or other unconscionable behavior. However, if both parties are represented by their own attorney, it is less likely that there was over-reaching and more likely that both interests are protected. By each party having their own lawyer, they can also ensure they get unbiased and honest advice about the effect of what they are signing.
It is always best for each party to have an attorney of their own choosing. Here at Thompson Salinas Londergan, LLP, we have experience negotiating and reviewing premarital property agreements.
