Protecting Yourself and Your Assets in a Marriage
When you get married, particularly if you’ve built up a substantial net worth beforehand, or you have significant assets that you want to protect, you don’t want to go into your new life together worried about what might happen to your property if the marriage doesn’t last. When you know that your assets will be protected, you won’t have to worry about anything other than your relationship. That’s the benefit of an effective prenuptial agreement. But how can you be sure that, should your marriage fail, the prenuptial agreement will be enforced in a court of law?
The Requirements for a Valid PreNuptial Agreement in Texas
In the Lone Star state, there are a number of prerequisites to a valid and enforceable prenuptial agreement:
- The agreement must be formalized in a written document – The courts will not enforce an oral agreement allocating marital assets in the event of divorce or separation. The terms of the agreement must be in writing and the writing must be signed by both parties. As a general rule, courts will typically not enforce a written agreement, either, unless it appears to be a contract. An exchange of letters, emails or text messages may not suffice, nor will notes jotted down on a piece of paper. The best approach is to hire an attorney to prepare a formal agreement.
- You must enter into the agreement before you get married – Once you are legally married, unless you already have a valid prenuptial agreement in place, any property must be divided under the community property laws of Texas. That applies to common law marriages as well. If you meet the legal requirements for a common law marriage, but haven’t entered into a prenuptial agreement, it’s too late to put one in place.
- The agreement must not be grossly unfair to one party – This is not just a requirement of prenuptial agreements…it typically applies to all contracts. Agreements where one party has all the benefit and advantage and the other party has little or none are customarily considered to be unconscionable and invalid.
- The agreement must have been entered into because of full and accurate knowledge of the other spouse’s financial condition – Because a prenuptial agreement generally involves either waiving the right to access to assets or accepting responsibility for liabilities, all parties must have an accurate understanding of what their rights and obligations will be. Full and accurate financial information must be available before a party signs the agreement.
- Both parties must voluntarily enter into the agreement – This is also a requirement of all valid contracts. A party may not be coerced into signing a prenuptial agreement, nor may a spouse enter into a valid prenuptial agreement based on false assertions, misrepresentations or fraud. Furthermore, if one of the parties lacks the capacity to enter into a valid agreement, it will likely not be enforceable. That may happen because of the age or mental health of a party, or it may result from an altered mental state (due, for example, to the influence of drugs or alcohol).
Contact the Proven Family Law Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with a knowledgeable and experienced family law attorney, contact us by e-mail or call our offices at (844) 402-2992. We will take your call 24 hours a day, seven days a week.