Prenuptial Agreements in Texas and 7 Situations Where You Might Consider One

Everything you need to know about prenuptial agreements in Texas 

Due in large part to sensationalized media coverage and Hollywood drama, prenuptial agreements (also known as prenups) have a negative stigma attached to them. But these premarital agreements can benefit and provide security to one or both spouses. In this post, we’ll discuss everything you need to know about prenuptial agreements in Texas and highlight seven situations in which you might consider one.

What is a Prenuptial Agreement?

By definition, a prenuptial agreement is a written contract where an engaged couple states their rights and responsibilities regarding premarital and marital assets and debts, and what would happen should their marriage end in divorce or death.

When to Begin the Prenuptial Agreement Process in Texas

It’s recommended to begin the process as soon as possible. Coming to a full agreement with your partner and having the document drafted can take time and you’ll have plenty of other things on your plate with an impending wedding. The final draft of the prenup should be presented by the partner whose attorney drafted the agreement at least 30 days prior to signing to avoid the accusation of duress or that a party was under significant amount of pressure due to a wedding date looming in the near future.

Steps to Filing a Prenuptial Agreement in Texas

Once you’ve determined that you want a prenuptial agreement, take the following steps. As you can see, the process can be quite involved, which is why we recommend initiating it as early as possible.

1. Hire an attorney to draft the agreement.
2. Discuss financial terms with your spouse.
3. Make a list of each spouse’s assets, debts, and other desired elements of the agreement.
4. Define which property is to be separate and which is to be shared.
5. Determine how to pay existing debts.
6. Define financial support.
7. Decide how to handle finances and assets.
8. Decide how taxes will be paid.
9. Determine the length of the agreement.
10. Ensure the agreement is fair.
11. Have the attorney draft the agreement.
12. Make sure your partner has an attorney and that he or she signs the agreement.
13. Make It official well-in advance of the wedding. (For a prenuptial agreement to be legally enforceable in Texas, it must be a written document signed and dated by both parties in the presence of a witness, and notarized.)

Should Both Parties Get Separate Lawyers for a Prenuptial Agreement? 

Due to the nature of an agreement specifying debts or assets belonging to each partner, both parties should have their own lawyer. Most courts will be reluctant or flat-out refuse to enforce a prenuptial agreement if one party doesn’t have a lawyer—especially if the court determines the agreement to be heavily slanted in one person’s favor.

Do You Need a Lawyer to Create a Prenuptial Agreement in Texas? 

While you don’t need a lawyer to create a prenuptial agreement, it’s strongly advised to work with a Texas family lawyer. An experienced lawyer can help you fully understand your rights and options, in addition to properly wording such an important, legally binding document.

Can You Change or Terminate a Prenuptial Agreement After Marriage?

Yes. A prenup can be terminated or modified if both parties agree to the termination or enter into a new agreement in writing. A new agreement created after marriage is known as a postnuptial agreement.

What Do You Do if Your Partner Won’t Sign a Prenup?

As with many agreements, timing, communication and compromise are key. Try to collaborate on your agreement so it’s agreeable to both parties. However, don’t put yourself at undue risk or a disadvantage for the sake of pleasing your partner. Clearly communicating your reasons for wanting a prenup can help bring your partner to an understanding and agreement. Prenuptial agreements must be voluntarily signed, so if you’ve exhausted all collaborative measures, your partner won’t sign, and you’re adamant about having a prenup, your only remaining choice is whether to postpone or reconsider proceeding with the marriage altogether.

How Much Does a Prenuptial Agreement Cost in Texas? 

For a simple agreement, it is reasonable to purchase 5-7 hours of legal services ($2500-$3500). For a complex agreement, it is reasonable to expect that 7 hours ($3500) or more of legal services may be required.

7 Situations in Which Couples Might Consider a Prenuptial Agreement

Following is a list of situations in which a couple might consider a prenuptial agreement:

1. One of the partners is wealthier than the other – Perhaps the most well-known reason for a prenup is when one partner is wealthier and seeks to protect the wealth he or she accumulated prior marriage.
2. One of the partners is in debt – Debt incurred during marriage is often attached to both spouses, regardless of who incurred it. If one partner is concerned with the other’s propensity for accumulating debt, they may consider a prenuptial agreement to protect themselves from being held liable for the debt and any related consequences to his or her credit.
3. One or both partners were previously married – Anyone who has been involved in a lengthy or ugly divorce in the past may consider a prenuptial agreement as a means to avoid a repeat of that situation.
4. One or both partners have children – A prenuptial agreement can protect the financial interests of children born outside of a new marriage and ensure assets belonging to them remain as such in case of their parent’s death or divorce.
5. One or both partners own a business – If you own a business, or share ownership of a business with partners, a divorce can be crippling. A prenuptial agreement can lend significant protections to a business in the event of a divorce, or establish what percentage of the business the spouse can acquire during marriage—if any.
6. One or both partners are concerned about confidentiality – Personal identity protection is on par with keeping one’s finances secure these days. A prenup can establish that neither partner may disclose, publish, or provide information to another individual or entity without the written consent of the other.
7. One of the partners has decided to be a stay-at-home parent – If a partner decides to give up his or her professional career to be a stay-at-home parent during the marriage, he or she is taking his or herself out of the workplace for years or decades and putting him or her at a disadvantage should he or she need to return. A prenuptial agreement can ensure that a person is able to continue the life in which he or she has been accustomed if the marriage ends prematurely.

Contact Carrington Smyth PLLC today with additional questions about prenuptials agreements in Texas, or to draft your agreement.