A premarital or prenuptial agreement (or “prenup”) is entered into prior to marriage and represents how both spouses will treat property, finances, and other responsibilities throughout their marriage and in the event of divorce. A prenup can help keep divorce litigation to a minimum, potentially saving divorcees thousands of dollars in attorney’s fees. It also makes couples think in advance about organizing their responsibilities regarding finances, child-rearing, and business, in some cases.
Despite the obvious benefits a prenup can provide, most couples decide against entering into such a contract. Understandably, divorce is the last thing on a couple’s mind when making wedding plans. However, if you and your partner are the type of couple who likes having a contingency plan, you are in luck. At Walters Gilbreath, PLLC, we are high qualified family lawyers with experience drafting premarital agreements.
If you would like advice on premarital agreements, contact us online or by telephone at (844) 451-1220 today.
Texas Law on Premarital Agreements
Under Texas law, a valid premarital agreement must be in writing and signed by both spouses. Valuable consideration (i.e. monetary payment) isn’t required to form a premarital contract – the promise of marriage essentially functions as consideration. Terms that are illegal or contrary to public policy are unenforceable. For example, the parties may not agree to any provision that would negatively affect one party’s right to child support.
A prenup is unenforceable in the following circumstances:
- Coercion: The parties must voluntarily sign a prenup without coercion or undue influence. If an agreement is executed closer in time to the wedding ceremony, the more likely a court will consider it as the product of undue influence.
- Unconscionability: The terms of the agreement must be fair and accompanied by a full disclosure of assets and financial obligations for the parties, unless the parties demonstrably had actual knowledge of those assets. In the absence of such disclosures, a written waiver of the right to this disclosure is required.
Prenups are often utilized when one party has more assets than the other. In addition to potentially saving thousands of dollars in attorney’s fees, a prenuptial agreement is useful in a second or any other subsequent marriage where the parties wish to clarify their respective children’s inheritance rights.
A premarital agreement is not voided by the fact that one party did not have their own lawyer at the agreement was entered into. However, experts recommend that both parties seek advice from an experienced family law attorney when preparing and executing a premarital agreement.
Premarital Contracts Involving Foreign Nationals
If you are planning to move abroad or if your prospective spouse is a foreign national, a prenup is useful for establishing terms to simplify international legal issues.
Consider the following:
- Including choice-of-law and choice-of-venue provisions that specify what country or state’s laws will be used to interpret the contract and determine the parties substantive rights (preferably a U.S. jurisdiction, especially if moving to here)
- Retaining independent legal counsel for both parties
- Providing an accurate translation of the agreement if another party is not proficient in the language of which the prenup was drafted, and requiring written acknowledgement that he or she understood the meaning and implications of the agreement
- Fair and reasonable disclosure of all assets and liabilities
- Video-recording the agreement’s execution and acknowledgement that the parties entered into it fully aware of its meaning, and without coercion, fraud or duress
If you have any questions, please contact Walters Gilbreath, PLLC online, or by phone at (844) 451-1220 today.