Is a Prenup a Good Idea in Texas?

A prenuptial agreement is a legal contract and should be treated as such

By S.M. Oliva

Prenuptial agreements often carry a stigma. After all, who wants to enter marriage after signing a contract that anticipates divorce? But there are a number of practical reasons for a couple to sign a prenuptial agreement.

Dealing With Complex Family Situations

A prior divorce is actually one of the principal reasons that a person entering a second (or subsequent) marriage might benefit from a prenuptial agreement. “After we’ve finished a divorce, and they’re thinking about getting married in the future, they might call us up,” says Kathryn Murphy, a family law attorney in Plano. “It’s future income or future earnings that we’re trying to keep separate, usually."

For example, if each partner has children from their prior relationships, it may be in everyone's best interests to keep certain property acquired before marriage separate. In some cases a prior divorce settlement may require a party to make certain financial provisions for their children. A prenuptial agreement before entering into a new marriage can therefore help ensure each spouse can fulfill these preexisting obligations.

Another thing to consider is debt. Although marriage vows typically include promises to take one another “for better, for worse, for richer, for poorer,” that does not necessarily mean a spouse has to assume responsibility for their partner's existing debts. A prenuptial agreement can include language limiting a non-debtor spouse's liability.

Making a Prenup the Right Way

Oftentimes a prenup seems like a bad idea because of the way one partner handles the matter. In other words, showing up at your fiancée’s door the morning of the wedding and asking her to sign a prenup without any warning is a bad idea. It is also likely to render any such agreement unenforceable in the Texas courts.

While Texas law allows prenuptial agreements, a court may reject any prenup if there is evidence that a party “did not sign the agreement voluntarily” or the terms contained within are “unconscionable when it was signed.” An agreement is considered unconscionable when one spouse fails to disclose their property and debts and the other spouse did not waive their right to receive such information beforehand. The agreement itself must also be in writing; a court will not accept a purported “oral” prenup.

Having Separate Representation

It is also generally a good idea for each partner to have their own counsel review any prenup prior to signing. Even if one partner's attorney drafts the agreement, the other partner should speak with a separate Texas family law attorney who can make sure they are being treated fairly and equitably. Again, this may not sound romantic, but a prenuptial agreement is a legal contract, and as with any such agreement you should always review the proposed terms with your own counsel before signing on the dotted line.

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