Without a marital agreement “Trial courts also have wide discretion and are allowed to take many factors into consideration in making a just and right division.” Schleuter v. Schleuter, Texas Supreme Court, 1997
- Marital Agreements Are Enforceable in Texas
Texas law provides that couples intending to marry, and those already married, may execute a document that characterizes their property as separate or community. That agreement may characterize property in a manner that is different from what the law would do without such an agreement. Premarital and post-marital agreements are completely enforceable in Texas and favored by Texas law.
- Two Types of Marital Agreements
When an agreement is signed before marriage, it is called variously a prenuptial agreement (“prenup”), a premarital agreement, or an antenuptial agreement. When a married couple decides to partition their community estate into two separate estates, that document is referred to as a partition agreement, a postmarital agreement or a postnuptial agreement.
- Endless Options of Texas Marital Agreements
In either case, there is no strict formula that the spouses must follow in dividing or characterizing their property. A couple about to marry may choose to designate everything that each acquires during marriage as his or her separate property so that no community property is created. They may choose to state that if the marriage ends each will receive 50% of the community property (Texas law does not provide for any automatic division, 50/50 or otherwise). Or, they may decide on something else. If one spouse has substantially more assets than the other an agreement can provide that the assets will remain separate but some will be given to the other spouse at various intervals or upon certain events. The options and possibilities are about as limitless as the parties’ creativity.
- During Marriage – a “Partition” Agreement
A married couple may choose to divide their community estate into two separate estates with a partition agreement. Again, there is no formula that must be followed and the spouses are free to decide about their own property.
- A Marital Agreement Must Be Voluntary and Fair
In either case, the agreement must be voluntary, generally fair, and each spouse or fiancé must: (A) Be given a fair and reasonable disclosure of the other’s property; or (B) Must sign a waiver of such disclosure, or (C) Must have had adequate knowledge of the property or financial obligations of the other party. The standard prenup and standard partition agreements available on this site provide schedules for disclosure of all assets and debts, PLUS two waivers of financial disclosure in case an asset is accidentally left off.
- Children and Marriage Agreements
A prenup or partition agreement may include provisions regarding inheritance to protect either spouse’s children born before marriage. Any provisions regarding children born during the marriage are unenforceable. Decisions about the children’s best interest will be made based on the circumstances existing at the time that the decision is made.
Standard Online Prenuptial
-Everything remains separate
-No community property is created during the marriage
-Permits joint purchases and gifts
Standard Postnuptial Agreement
-Made during marriage (post-marital)
-Divides community estate into separate estates
-Essentially a prenup after marriage
Unmarried Cohabitation Agreement
-Confirms that parties are not married
-No disclosure of assets or debts
-Confirms individual personal property
Custom Texas Prenups or Marital Property Agreements
-Not always 100% separate
-Appropriate for larger or complex estates
Online Texas Prenup Package
The standard prenup package serves several purposes: (1) It is a written record of the assets and debts of each spouse at the time of marriage and (2) it provides that no community property will be created during the marriage. Each spouse will own separately all income and assets that he or she acquires during the marriage. In the event of divorce, there will be no community property to divide. This includes all retirement, real estate, financial accounts and all other assets.The standard prenup package available on this site includes: (1) a prenuptial agreement; (2) forms for listing the assets and debts of each fiancé; (3) 2 waivers of financial disclosure; (4) a post-marital property agreement to be signed shortly after the marriage; (5) a cover letter explaining how to execute the documents, and (6) a half hour phone consultation with attorney Brian McNamara after you receive the package to answer any questions. The fee for the entire package is $399.
Online Marital Partition Package
The Standard Partition Package divides or “partitions” a community estate into two separate estates. The spouses divide the community estate by identifying the assets and debts that each will receive. Forms are provided for that purpose and are referenced throughout the document. You simply write the husband’s assets and debts on his spreadsheet, and the wife’s on hers. It is important that all assets and debts be listed because if something is not awarded to one of the spouses it could remain a community asset.Partition Package includes (1) A Marital Property Agreement, (2) Forms for listing the assets and debts that are “partitioned” or awarded to each spouse, (3) Waivers of Disclosure just in case an asset is accidentally left off of the forms, (but it is still best to ensure that all assets and debts are listed), (4) a Cover Letter with instructions about executing the documents, and (5) a half hour phone consultation with attorney Brian McNamara after you receive the package. The fee for the entire package is $399.
Custom Marital Agreement
For those who do not want such a clear-cut scheme, a custom prenup or partition agreement is also available. That document can provide for anything to which the parties agree. Certain assets can be kept separate and others can become community. The division of any community property can be specified or all can be separate and one spouse can agree to give the other periodic gifts of cash or property. There are endless options.
Should you have any questions or would like to customize a marital agreement, please contact Brian McNamara at 281-358-3444.
Back to main topic: Texas Marital Agreements
Are there any assets that cannot be kept separate by a Prenup or Partition Agreement?
No. A properly drafted prenuptial agreement, along with accurate and comprehensive property and debt schedules, can ensure that all of your assets before marriage and everything acquired after marriage, remains your separate property. Read more...
Can a prenuptial or partition agreement be modified after it is signed?
Yes. The standard prenup contains a term providing for modification in writing at any time so long as both spouses agree. Read more...
Can Children Be Included In A Prenup Or Postnup Agreement?
Texas law will not enforce prenuptial and postnuptial agreements that involve children unless the agreement is in the child's best interest. Read more...
Can Spousal Abuse Or Cheating Invalidate A Prenuptial Or Partition Agreement?
Spousal abuse or cheating does not void or invalidate a prenuptial or partition agreement unless the agreement specifically states that. Most prenuptial or partition agreements do not mention abuse or cheating. Read more...
Common Law Marriage in Texas - Does it Apply to Same Sex Couples?
In July 2015, Texas Family Code section 2.401 still provides that an informal marriage (common law marriage) occurs between a man & a woman when: Read more...
Consulting A Prenup Lawyer | Should Both Parties Have One?
It is a common misconception that each party is required to separately consult a prenup lawyer before signing a prenuptial or postnuptial agreement. This is a misconception even among lawyers. Read more...
Does the Standard Prenup or Partition Package allow us to buy property together?
Yes. The Standard Prenup & Standard Partition packages both provide that the spouses may purchase property together but are not required to. Read more...
Doesn't Texas Law award the community estate 50/50 without a prenup or partition?
No. Texas law does not provide anywhere for a 50/50 division of a community estate. Read more...
How much does a Prenuptial or Partition Agreement cost?
Mcnamaralawyers.com offers a standard prenup package for $399. That package consists of: Read more...
How To Write A Bullet-Proof Texas Postnup Partition & Exchange Marital Agreement
When it comes to knowing how to write a bullet-proof Texas postnup partition & exchange marital agreement, there are two main categories that should be considered: statutory provisions and additional defensive actions. Read more...
Is a Texas Prenuptial or Partition Agreement valid in other states?
The agreements available on this site contain language designed to assist other states in putting them into effect if necessary but, ultimately, that depends on the law of the jurisdiction being asked to enforce the agreement. Read more...
Only An Experienced Family Law Attorney Should Write Or Change A Prenup or Postnup
A marital property agreement is a contract, and the law of contract interpretation applies. Every word means something. Read more...
Should a Prenuptial or Partition Agreement be recorded in Texas?
Texas law provides that a marital partition agreement (postnup) can be recorded with the county records. Whether or not it is recorded will have no impact on its enforceability between the spouses. Read more...
Should An Infidelity Clause Be A Part of A Marital Agreement?
Before we can discuss an infidelity clause, let's define a marital agreement. A marital agreement can be a prenup that is signed before marriage or a postnup that is signed during marriage. Read more...
What are the limitations of a prenuptial agreement or partition agreement?
A prenuptial or partition agreement cannot provide terms regarding children born during the marriage. Any decision about children will be made based on their best interest at the time that the decision is made. Read more...
What Happens To My Home If My Spouse Dies Without A Texas Marital Property Agreement?
If your spouse dies without a valid Texas Marital Property Agreement or Will, Texas laws will decide who inherits your property. Read more...
What if I wanted to give my spouse money or a gift after we are married with a Prenup or Partition Agreement?
Both the Standard Prenup & Standard Partition Agreements include provisions that permit either spouse to make a gift to the other. Read more...
Will Marriage Agreements For Same Sex Couples Apply In Texas
Texas law is in flux and nobody knows exactly how marriage agreements for same sex couples will all work out. Read more...