Texas Prenuptial AgreementLegal Reference & Education
Texas Pre-nuptial Agreements
The State of Texas has got its own pre-marital or pre-nuptial agreement law as covered by Chapter 4 with sections 4.001 to 4.010 of the statues of Texas and this sub-chapter is referred to Texas Uniform Pre-marital Agreement Act.Since uncertainty hovering over the future marital life of nearly 50 % of marriages in Texas, it prompts the people contemplating marriages enter into the pre-nuptial or pre-marital agreements.
Another notable feature of the State of Texas is that it is a community property state, which means that as per the general law or statue of Texas separate properties of individuals will become the common properties of the people what is called Marital Estate, when they get married and in case of their divorce, the court will divide them into 60/40 or 80/20 ratio according to the principles of equity. People contemplating marriage and do not like this division of their properties by court is naturally inclined to enter into pre-nuptial agreements.
Before discussing about the Texas pre-nuptial agreements in detail, it is quite useful to learn the definitions of some frequently used terms in the pre-nuptial agreements.
According to Chapter 4.001 FAM of the Statues of Texas:
1)‘Pre-marital agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.
2) ‘Property means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.’
Therefore, people contemplating marriage and desirous of entering into a pre-nuptial agreement should:
* Gather all their personal data that includes their name, address etc
* Gather all the details of their properties, their debts, the details of their cash deposits, insurance policy amounts, retirement benefits etc
* Each spouse should consult a separate counsel at least 30 days prior to the date of entering into a pre-nuptial agreement, which connotes allowing sufficient time for drafting the pre-nuptial agreement and thereby giving credibility to the pre-nuptial agreement when it is under the consideration of a court.
The contents of the Pre-nuptial Agreements:
A Pre-nuptial Agreement should be reduced into writing (Chapter 4.002 FAM) and signed by both parties in the presence of a notary; however signing before the notary public is not obligatory. A Pre-nuptial agreement will come into force as and when the parties to the agreement get married.(Chapter 4.004 FAM)
The contents of the Texas Pre-nuptial agreements should only include the details of the properties as enjoined by the chapter 4.003 FAM:
The rights and obligations of the parties entering into the agreement, the right to buy, sell and other ways of disposition of the properties during the marriage, after divorce and in case of death etc, regarding spousal support, making a will or trust etc, the details of ownership of the insurance policy amount after the policy holder’s death, choice of law that governs the agreement and any other matter which is opposed to public policy etc and above all the recitals of the agreement should not adversely affect child support.
The recitals of the Pre-nuptial agreement or pre-marital agreement may be amended or even the agreement may be revoked if the situation warrants, as enjoined by Chapter 4.005 FAM.
The Pre-nuptial agreement may become invalid, if the court finds that one of the parties to the agreement did not sign it voluntarily and the complete details of the properties were not disclosed or recitals for waiver were not obtained properly. The Pre-nuptial agreement may become void to the extent how far the marriage is void. Again, if the provisions of the Pre-nuptial agreement are unconscionable, it has got to be decided by the court.
The Texas Pre-nuptial Agreement has got the following advantages:
* It reduces litigation cost in the divorce proceedings.
* It helps to override the general provisions of the statues of Texas, in particular with reference to community property or Marital Estate.
* It helps to retain the individual rights like writing a Will, creating aTrust etc in the disposition of their properties.
* It helps to protect properties.
* It protects creditors.
Sample of the Texas Pre-nuptial Agreement:
Luis Perez, referred to as the prospective husband, and Andrea, referred to as the prospective wife, agree:
The parties contemplate marriage in TX and desire to fix their respective rights and entitlements regarding each other's property.
Each party herewith waives the right to:
• Share in each other's estate upon death, whether by will, dower, courtesy, statutory share, statutory right, whether such right now exists by statute or case law.
• Share in any pension, profit sharing, government or military pension plan.
• Share in the increase in marital assets regarding separate property during marriage.
• Alimony, whether permanent or rehabilitative, separate maintenance, or other forms of spousal support, or division of property due to their status of marriage or former marriage.
Each party acknowledges an opportunity to consult with independent counsel of their own choosing.
Each party hereby acknowledges that:
• Each spouse represents to the other that he/she has adequate separate resources for his/her own support.
• Each spouse has made a full and complete disclosure of his/her respective financial conditions to the other prospective spouse.
This pre-marital agreement represents the entire agreement of the parties, and there are no representations others than those stated herein. This agreement may only be modified in a writing executed by both parties.
EACH PARTY IS AWARE THAT UNDER THE LAW, COURTS HAVE THE AUTHORITY TO IGNORE THIS AGREEMENT UNDER CERTAIN CIRCUMSTANCES IF ONE SPOUSE IS IMPOVERISHED AND THE OTHER IS NOT.
READ CAREFULLY BEFORE SIGNING. THIS IS A LEGALLY BINDING INSTRUMENT.
Dated: April 2, 2011