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.
Statutory provisions are those that are explicitly defined by the law, whereas any additional defensive actions are taken only to protect the integrity of the contract and are not necessarily required by law.
The Letter of the Law
To be considered a legal contract, a post-marital agreement must first be in writing and signed by both parties. However, the mere existence of a written contract with the appropriate signatures is not adequate for the document to be upheld by the court.
For a post-marital agreement to be legally binding, it must be signed by both parties voluntarily and with full understanding of the document and its implications. The law requires that both parties provide fair and reasonable disclosure of all assets and liabilities, or otherwise have adequate knowledge of each other’s finances and obligations. Otherwise a separate document must be signed which waives the right to any further disclosure. In many cases, it is recommended that such a document is drafted and signed regardless. The disclosure must be signed before the postnup.
Furthermore, to write a bullet-proof Texas postnup partition & exchange marital agreement, it must be a conscionable agreement, meaning that it must not be so unfair as to cause severe financial hardship to one party while the other profits. There are no Texas cases about unconscionable postnup partition & exchange marital agreements. Presumably, an agreement that makes one no worse off than if the marriage had not occurred would not be unconscionable. The contract should also not include any clauses which can be found to be in violation of state laws.
Covering Additional Defensive Actions
Beyond following the letter of the law, there are several steps that a couple can take to reduce the likelihood of legal conflict down the road. For example, using a fill-in-the-blank form or template rather than addressing specifically the circumstances of the marriage is generally not a good idea and can ultimately be harmful to the validity of the document, especially when the form is not tailored to the state in which the couple will live.
While it is not stated explicitly in Texas state law, it is a good idea for both spouses to have separate legal counsel to advise them of their rights and responsibilities. This will help to avoid many scenarios in which a spouse can claim that they were not fully informed or did not fully understand the situation and the contract before signing. If one or both spouses are foreign nationals or speak English as a second language, it’s a good idea to consult with a Texas lawyer that speaks their native language. The agreement is not enforceable unless signed voluntarily. Texas does not define voluntary in the context of a marital agreement. A creative lawyer might argue that poor command of English means it was not signed voluntarily.
Once the agreement is made and has been signed by both parties, it is wise to consider filing a declaratory judgement action with the court. Doing so essentially asks the court to verify the legality of the contract. This can help to resolve future conflicts before they arise. A declaratory judgment requires a controversy, i.e. a disagreement. If both spouses agree that the marital agreement is effective, some judges believe there is no authority to hear the declaratory judgment action, and refuse to sign it.
Knowing how to write a bullet-proof Texas postnup partition & exchange marital agreement takes years of law school and experience as a lawyer. If it becomes necessary to enforce the agreement, the difference between an enforceable agreement and an unenforceable one could mean a lot of money, and even working after retirement should have occurred.