The use of postnuptial, or post-marital, agreements has been trending upward recently in Texas and throughout the nation. While no couple plans for their marriage to end in divorce, post-marital agreements provide financial certainties to each spouse should a breakup happen. Because of this agreed-upon predictability, married couples have shown an increasing endorsement in postnuptial contracts.
A post-marital agreement is a contract between existing spouses that can determine an array of issues should a divorce occur. Post-marital contracts usually control the distribution of assets or property in a divorce, but can also control many other issues that may be important to the particular couple, including temporary and permanent support, division of assets and debts, confirmation of separate and community property, or even who gets custody of the family pet.
Many people are familiar with prenuptial agreements, where fiancées predetermine the fate of important issues should their marriage unexpectedly end. Conceptually, post-marital agreements are the same, but the couple decides to make this agreement after they are already married.
When is a Post-marital Agreement Appropriate?
There are several instances that may spur spouses to create a postnuptial agreement. One instance is when a couple didn't execute a prenuptial agreement, only to later regret it -even in a presently happy and healthy marriage. Or, both spouses are no longer pleased with the terms of their premarital agreement and they wish to change them.
In another scenario, there have been such significant changes in the lives of the couple (such as career changes), that the husband and wife both find the need for a post-nuptial contract. In these situations, the spouses can form a post-marital agreement to give themselves peace of mind. However, Texas courts and lawmakers have imposed stringent requirements upon the creation and execution of post-marital agreements. If these requirements aren't carefully followed, Texas courts will wholly refuse to honor the terms of the postnuptial contract.
Legal Requirements for a Postnuptial Agreement to Take Effect
Because of the important issues covered in post-martial contracts, and the potentially devastating results if abuse occurs, Texas law imposes strict requirements on postnuptial agreements. Some of the requirements are procedural, such as making sure the legal document has the necessary signatures and witnesses.
However, Texas law will also render the agreement invalid if one of the spouses can prove that the agreement was formed unfairly or without some minimum level of sufficiency. Some of these grounds that a court will examine for lacking fairness are:
- The party didn't voluntarily sign the agreement without the influence of duress or undue influence;
- The agreement was unconscionable at the time of its signing;
- Both parties did not have a reasonable knowledge of the rights they were waiving and they did not have sufficient knowledge of the other's estate to determine the value of those rights; and/or
- There was not a full and fair disclosure of property or financial aspects of the other parties' estate. Note that the court also requires some additional showings of unconscionability by the party seeking to render the agreement invalid and unenforceable.
While the law may appear straightforward, these requirements are subjective in nature and are open to extensive arguments from both parties. If you are in an argument over the validity of a postnuptial or prenuptial agreement, or are looking to create one, it is critical to contact a family law attorney who is experienced in these matters. An experienced attorney can save you time and money, while affording you peace of mind.
