Prenuptial Agreements--Some Thoughts

Posted by David Armstrong | Jun 17, 2022 | 0 Comments

Prenuptial (and Marital) Agreements in Texas: A Few Thoughts 

Chapter 4 of the Texas Family Code lays out the terms needed for both prenuptial and postnuptial agreements.   If you are getting married (especially, in my opinion, a second time) it is a good idea to review with an experienced attorney prior to the wedding what you can and can't do, as well as should and shouldn't do.  

One great benefit of thinking through such an agreement is it forces a couple to talk about some of the issues regarding finances that they should consider before marriage.   Every couple should get financial counseling, and review such important issues as saving, investing, decisions on purchases, working/jobs, etc….   A marriage that does not include discussion (and agreement) on those issues is one that is much more likely to end in a divorce.  Better to talk about it before going down the aisle.     

Texas Family Code 4.003 gives the following list of what a prenup can affect:

(1)  the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(2)  the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

(3)  the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

(4)  the modification or elimination of spousal support;

(5)  the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

(6)  the ownership rights in and disposition of the death benefit from a life insurance policy;

(7)  the choice of law governing the construction of the agreement;  and

(8)  any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b)  The right of a child to support may not be adversely affected by a premarital agreement.

               It remains my opinion that a prenuptial agreement is more important for second marriages, often because one or both of the parties has already been through a difficult divorce, and also because there is an interest in protecting assets for children of that first marriage.   If there are significant assets for either or both parties, it becomes all the more important.   Knowing what you can do in a marital agreement and reviewing those possibilities with an experienced attorney is well worth the time and financial investment.

About the Author

David Armstrong

J.D. University of Houston, 1995


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