PRENUPTIAL AND POSTNUPTIAL AGREEMENTS

(And Cohabitation Agreements)

It might seem to be giving up on a marriage before it starts when a prospective spouse wants a premarital agreement. Sometimes, though, it just makes good sense. Premarital agreements are still quite rare and mostly come about when one party to the marriage is significantly wealthier than the other or makes significantly more money.

The Texas legislature has recognized and endorsed marital property agreements by placing them in the Family Code. The courts have upheld them for years.

Future spouses should be very careful, however, in crafting an agreement that will be enforceable.

Generally, spouses have the same rights to make agreements with each other concerning their property. These agreements need to comply with various provisions of the state law. In order to make the agreement as "bullet-proof" as possible, both parties should, but are not required to, be represented by counsel. In addition, there should be full disclosure of all assets and liabilities before they are signed.

There can be no fraud or misrepresentation in enticing someone to sign such an agreement. In addition, the agreement must be voluntary.

Post-nuptial agreements are made after the marriage and are subject to many of the same restrictions as pre-nuptial agreements. Generally, pre-nuptial agreements are entered into on order to protect the property or earnings of one or both spouses. Post-nuptial agreements are usually made for estate tax planning purposes.

In addition to pre-nuptial and post-nuptial agreements, some Texas couple who do not plan to marry will enter into cohabitation agreements in order to achieve the same purposes of a pre-nuptial agreement. There is no statutory authorization for cohabitation agreements but most attorneys believe that they will most likely be upheld as contracts between two parties.

Parents are not allowed in any of these agreements to make arrangements for such children's issues as child support, possession, or the rights and duties concerning the children. That is considered to be against public policy and such agreements will not be enforced.

The family law attorneys at the Bob Leonard Law Group have experience in drafting these agreements and in representing the "other party" to these agreements. Whether it is you or your prospective spouse who wants one of these, let us help you protect your interests.