A marriage joins two hearts and two souls. It also legally joins two sets of finances. If the marriage should end, each spouse is at the mercy of the other and the law regarding how those finances and assets are split. To have more control over any potential divorce situation, some couples decide to sign a prenuptial agreement.
A 2016 survey conducted by the American Academy of Matrimonial Lawyers (AAML) reveals that 62 percent of attorneys have experienced a rise in the number of clients drafting prenuptial or prenup agreements in the past several years. In fact, there has been a fivefold increase in just the past two decades.
What is a Prenup Agreement?
Prenup agreements help both spouses ensure that if and when they leave the marriage, they leave with the assets that are most valuable to them. In essence, it is a private written contract that puts forth specific terms for what should happen to assets if the couple decides their marriage is over. For example, a prenup agreement could state that all assets acquired during the life of the marriage will be split 50/50. It could also include terms for alimony payments, such as if it should be waived. If alimony is not addressed in a prenup, either spouse could ask the other for it.
Also known as premarital agreements, prenuptial agreements can also govern what happens to one spouse's separate property if they pass away. These contracts permit a spouse to leave most of their assets to other family members, friends, or charities. For instance, if one spouse had children from a previous relationship, a prenup would allow them to leave some or most of their assets to those children.
However, prenups cannot provide for or limit child support or custody. The rights of a couple's children cannot be bargained away.
Such contracts should be drafted before the legal marriage commences but are not enforceable until the couple is legally married.
What Makes a Prenup Enforceable?
A prenup agreement is only enforceable under specific conditions. It is critical that couples who wish to execute a prenup take every necessary step to ensure it will be enforceable. Otherwise, they are not only wasting time and money but also setting themselves up to manage their divorce settlement traditionally. They could end up losing all of the protections that their prenup afforded them.
An enforceable prenup must generally be fair. If enforcing the prenup will cause one spouse to have the majority of the couple's marital wealth, the court may not uphold it. When creating the agreement, each spouse should have their own experienced Round Rock divorce attorney. If they share an attorney, or only one spouse has legal representation when the prenup is created, it could be viewed as an unfair advantage. Additionally, each spouse needs to enter into the agreement on their own will and not under duress.
Each spouse must fully disclose all of their assets, property, and debt. A fair and enforceable prenuptial agreement cannot be forged if all of these details are not known beforehand.
Are Prenups Enforceable in Other States?
Every state has its own laws addressing the enforcement and validity of premarital agreements. Factors that might determine which state a court will apply may depend on:
- Where the marriage took place
- Where the parties live during the marriage
- What law the agreement says to apply
Frequently, soon-to-be-married couples in this situation will research the laws of the state that will be most beneficial in enforcing the terms of the prenup. In general, most family courts, no matter the state, will be concerned with how fair the prenup is and whether it is enforceable in the state in which it was created.
Are Foreign Prenups Enforceable in Texas?
It would be unwise to simply assume that a prenup that is currently valid in the state or country of the marriage or where the couple resides presently will be equally valid elsewhere. While many divorcing Texas couples have prenups drawn in other states, some have prenups that were not drafted in the United States. Foreign premarital agreements can add an extra layer of complexity to a reaching divorce settlement. Suppose you are drafting a prenup that you want to be globally enforceable or have an existing foreign prenup you need to enforce in Texas. In that case, you need the help of a seasoned Round Rock divorce attorney.
Laws regarding marriage contracts and prenup agreements vary greatly around the world, as do the attitudes of courts who must determine their fate. How foreign prenups are dealt with is changes significantly and in a multitude of different ways from one country to the next. With the exception of the European Union, there are generally no international laws governing how local laws should apply to international personal relationships.
In determining how foreign prenups should be enforced, Texas courts will likely follow recent case law, comparing the divorce and prenup laws of the originating country to those in Texas. In one recent case, the Eighth Court of Appeals reversed the lower court's decision to disregard a wealthy couple's foreign prenup from Chihuahua, Mexico.
The Court of Appeals found that Chihuahua and Texas laws regarding premarital agreements are quite similar. Both categorize property as community or separate. Both also allow future spouses much flexibility to determine how the property they might acquire during the marriage is categorized. As such, the Court of Appeals held that it is congruent with the public policy of Texas to recognize and enforce a prenup agreement entered into in Chihuahua.
Do You Need Help Drafting or Enforcing a Prenup?
If you have questions about signing a prenuptial agreement or how a current agreement will impact your divorce, turn to Brett Pritchard at The Law Office of Brett H. Pritchard in Round Rock, Texas.