Pre-Nuptial Agreement FAQ
What is a Pre-Nuptial Agreement and do I need one?
A Pre-Nuptial Agreement is a written contract signed by a man and woman in contemplation of marriage, which sets forth what their assets and debts are and how those will be divided at the end of the marriage. If you are “young and in love” you probably do not need a prenup. However, in this day and time many people enter marriage when they are not so “young and in love.” When a couple marries and has a child or children from a previous relationship, has obtained valuable property, or owes a significant amount of debt a prenup is needed. A Pre-Nuptial Agreement addresses the issue of what will happen when a marriage ends, whether by divorce or by death.
Texas law presumes all property owned by the parties is community property to be divided by the Court whether in a divorce proceeding or in a probate Court; however, not all property is community property. Often times couples have “separate” property. Separate property is property a person owned prior to marriage, property received as a gift, and inherited property. Debt is also treated as separate in many instances and is called “separate debt.” A Pre-Nuptial Agreement protects you and your separate property from the very beginning so that should a divorce or a probate matter occur, your assets are protected.
How can I prove my separate property is mine?
When a marriage ends, a spouse must prove by “clear and convincing evidence” that the property claimed to be separate property truly belongs only to them. Sometimes that is difficult to do years later if records are no longer available, memories do fade over time, the owner may be deceased and the executor has no way to prove the property really was the decedent’s separate property. A Pre-Nuptial Agreement solves the problem by setting out exactly who owns what and how it will be divided at the end of a marriage.
How much will I pay to prepare a Pre-Nuptial?
The fee charged is based on an hourly rate. The more time spent in drafting the document, the more it will cost. The less time spent, the less it will cost. Each person’s situation is unique and requires individual consideration. When extensive assets or debts are involved it can cost more than a standard, “run-of-the-mill” agreement. Generally speaking, most people should expect to spend about $1,500 although it can be more for extensive Pre-Nuptial Agreements. It is far more economically sound to execute a Pre-Nuptial Agreement when compared to the legal fees that could be incurred at the end of a marriage in the division of assets and debt.
Will the Court enforce the agreement?
A Pre-Nuptial Agreement is a legally binding contract and the Court will enforce written contracts; however, like with any contract there are defenses and “pitfalls” that pose a threat to such agreements. Securing a legal professional to assist you will greatly reduce the possibility of the Court failing to enforce the agreement and will avoid common “pitfalls.”
Is there a “Post-Nuptial Agreement” and could we do all of this after we are married?
Amazingly enough there is a “postnup,” only we don’t call it a “postnup.” We call it a partitioning agreement. A partitioning agreement divides assets and debts between married couples, so if you did not wish to do a Pre-Nuptial Agreement and decided to address this issue after marriage you could do so; however, in every partitioning agreement there is a clear risk of losing or signing away valuable legal rights when the agreement is executed. You should ask yourself why would you or your spouse desire to be in that position. Of course, the answer is that you do not and neither does your spouse, thus it may be too late.
Where can I get help?
We urge you to call our office to set up a time that we may discuss your situation and determine if a Pre-Nuptial Agreement is right for you. The consultation fee is capped to a maximum of one hour of billable time, even if we talk in excess of an hour.
Do not put this off simply to avoid an unpleasant topic or procrastination. It is a decision too important to dismiss prior to your upcoming marriage. Give us a call. We look forward to assisting you.
The information provided herein is given for general information only. The information presented should not be construed as formal legal advice or the formation of a lawyer/client relationship.
