What is a Postnuptial Agreement?

Texas law allows a couple entering into their marital contract to outline each party’s financial obligations throughout the marriage. These marital agreements lay out the details for dividing the couple’s marital assets and debts in the instance of a divorce. If the agreement is written before the marriage ceremony, it is considered a prenuptial agreement. If it is written after the marriage ceremony, it is a postnuptial agreement. While having a pre or postnuptial agreement in place is a reasonable arrangement for couples at all income and asset levels, it is necessary for those with considerable assets and debts.

In Texas, a postnuptial agreement is intended to determine the financial responsibilities and rights of each party in a marriage in the instance of a divorce. A postnuptial agreement should be determined at a time when the marriage is amenable and when both parties are happy to compromise. Postnuptial agreements are not intended as a precursor to an inevitable divorce, rather, as a safety net in the instance of a divorce. Ideally, each party in the agreement will have their own lawyer or an independent third party who can review the drafted agreement before either party signs.

Are all Postnuptial Agreements Enforceable?

While Texas considers most postnuptial agreements enforceable, there are some circumstances that would deem the agreement unenforceable. This includes the following:

• If the party against whom enforcement is requested proves that they did not voluntarily sign the agreement.
• Inadequate knowledge of the other party. If they were not provided, did not waive, and could not reasonably have adequate knowledge about the property and financial obligations of the other party.

In summary, both parties must sign the postnuptial agreement voluntarily and all property and financial obligations should be disclosed before signing.

What is included in a Postnuptial Agreement?

As stated above, a postnuptial agreement is intended to determine the financial responsibilities and rights of each party in a marriage in the instance of a divorce. this 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.

Although a postnuptial marriage agreement cannot predict your future or prevent life’s uncertainties, it can prepare you for those risks and rewards. Lay the foundation for a successful marriage by providing security for both you and your spouse.