When it comes to marital property agreements, a “postnup” in Texas can help lay a foundation of trust for both spouses, paving the way for greater relational success and financial security.

What is a Postnuptial Agreement?

In Texas, couples entering into a marital contract have the option to outline each party’s financial obligations throughout the marriage through a postnuptial agreement or “postnup” or “post nup” AFTER the couple is legally married. This marital agreement (also known in Texas as a marital property agreement) lays out the details for dividing the couple’s marital assets and debts in the event of a divorce. While these agreements are beneficial for couples at all income and asset levels, postnuptial agreements are particularly essential for those with significant, changing, and/or complex assets and debts.

Prenup vs Postnup:

If the agreement is written before the marriage ceremony, it is considered a prenuptial agreement.

However, if the agreement is written after the marriage ceremony, it is considered a postnuptial agreement. A postnuptial agreement also allows you to update things you may have missed in your prenup, such as an intangible asset that you did not know how to place a value on (for instance). Certain issues such as child custody can’t be determined in a postnup or “post nup” as it is sometimes referred to in Texas.

What is included in a Postnuptial Agreement?

Since a postnuptial agreement in Texas is intended to determine the financial responsibilities and rights of each party in a marriage in the instance of a divorce, this marital property agreement can include a variety of financial obligations, including but not limited to:

• Who in the marriage is responsible for maintaining assets and debts. This includes real property (i.e. house and vehicles) and financial management.
• How assets and debts will be divided in the instance of a divorce.
• Whether or not spousal support (or alimony) will be provided for either party, outside of other circumstances.
• Protecting one spouse from inheriting debt.
• Family business management and assigning business roles during the marriage and in the instance of a divorce or death.
• Distribution of assets to any children from another marriage in the instance of divorce or death.
• Estate planning details and the creation of a will.
• Any other matters related to the family finances.

While a postnuptial in Texas cannot predict the future or prevent life’s uncertainties, it can prepare couples for the risks and rewards. By providing security for both spouses, it can lay the foundation for a successful marriage.

When should you consider a postnup in Texas?

As the intention of a postnuptial agreement is to determine the financial responsibilities and rights of each party in a marriage if a divorce occurs, a Texas postnup should be initially determined at a time when the marriage is amenable and when both parties are happy to compromise. (Keep in mind that postnuptial agreements are not intended as a precursor to an inevitable divorce, rather, as a safety net in the instance of a divorce.)

Five Reasons to Consider Creating a Postnuptial Agreement:

1. Significant Change in Financial Circumstances
If either spouse experiences a significant change in financial circumstances during the marriage, such as inheritance, business success, or substantial debt accumulation, it may be prudent to consider a postnuptial agreement to protect each party’s interests in these new assets or debts.

2. Change in Career or Professional Status
If one spouse experiences a substantial change in career or professional status during the marriage, such as starting a new business, obtaining a high-paying job, or leaving the workforce to raise children, a postnuptial agreement can outline the financial implications of these career changes in the event of a divorce.

3. Strengthening Marital Harmony
For some couples, creating a postnup can be a proactive step in strengthening their marriage. By addressing financial concerns and expectations through a postnuptial agreement, spouses can enhance communication and trust regarding their financial future, ultimately contributing to greater marital harmony.

4. Preserving Family Wealth or Business Interests
If either spouse brings significant family wealth or business interests into the marriage, a postnuptial agreement can establish guidelines for protecting these assets and delineating the rights and responsibilities of each spouse with respect to the family wealth or business in the event of divorce, especially if these interests were not covered in a prenup or have changed since the couple was legally married.

5. Second Marriages or Blended Families
In cases of second marriages or blended families, a postnuptial agreement can help clarify financial arrangements for children from prior relationships, estate planning, and inheritance matters to ensure that both current and prior family interests are protected.

Consider and discuss these five reasons for a postnup in Texas as well as other circumstances. Then you can determine whether a postnuptial agreement is appropriate for your relationship and future financial security.

Enforceability of Postnuptial Agreements

Postnuptial agreements in Texas follow the Uniform Marital Property Act, which means they must be written and voluntarily signed by both parties. So, while Texas considers most postnuptial agreements enforceable, there are some circumstances that would deem the agreement unenforceable if a court is asked to examine the agreement by one of the parties in question.

A postnup in Texas may not be enforceable if (among other reasons):

• it can be demonstrated that one of the parties did not voluntarily sign the postnuptial agreement.
• it can be demonstrated that one of the parties had inadequate knowledge of the other party’s property and financial obligations at the time that the “post nup” documentation was created (or if they did not waive the right to this knowledge in writing at the time of signing).

Ideally, each party in the agreement will have their own Texas family lawyer or an independent third party who can review the drafted agreement before either party signs to help prevent enforcement. A postnuptial agreement lawyer is not required in Texas, but our Capps family law team recommends that our clients request a consult with one of our expert family lawyers to ensure their best interests are documented before finalizing a Texas postnup after a marriage.

Reach Out to Capps Law Firm to Answer All Your Texas Postnuptial Agreement Questions

If you would like to discuss your postnuptial agreement and/or any other family law concerns that you may have, contact our office or call our office at (512) 338-9800. We are ready to partner with you and help you with any of your Texas family law matters.