Newly engaged partners are not the only ones who worry about the financial implications of divorce. If anything, money stress only amplifies, once you’re fully entrenched in marriage and the honeymoon glow has dimmed.
Luckily, even if you missed your opportunity to sign a prenuptial agreement, there is still a way for already-married couples to address some of the same concerns.
Enter: the postnuptial agreement.
Here are some of the most commonly asked questions about postnuptial agreements in Texas, and how Neal Ashmore can help make sure your contract is valid.
What is a Postnuptial Agreement?
A postnuptial agreement (sometimes called a “marital agreement” or “partition agreement” in Texas), is a contract made between spouses, which can dictate things like property, debt, and alimony, in the event of death or divorce.
This type of contract is very similar in structure, limitations, and purpose to its prenuptial agreement counterpart. The main difference is that instead of being made prior to marriage, a postnuptial agreement is executed after the couple walks down the aisle.
What Can A Postnuptial Agreement Cover?
Not everyone needs or even wants a postnuptial agreement. However, under the right circumstances, these contracts can be incredibly beneficial.
Some of useful things a postnuptial agreement can do include:
- Outline what property is separate, and what is community;
- Change separate property into community property (and vice versa);
- Divide assets, upon death or divorce;
- Dictate property management;
- Assign debt responsibility;
- Provide spousal maintenance amounts and obligations;
- Act as a waiver of certain rights; and,
- Ensure that children of another relationship are taken care of, in the event of death or divorce.
In Texas, many couples also turn to a postnuptial agreement if they plan to separate.
Using a Postnuptial Agreement as a Separation Agreement
Unfortunately, Texas courts do not recognize legal separation. Sure, spouses are always free to casually live apart whenever they want, but those who want something official to govern the terms of their time out are out of luck… or are they?
Enter: the postnuptial agreement.
For the savvy attorney, the status of legal separation afforded in other states can easily be mimicked by drafting a postnuptial agreement. This ensures that important items like property, custody, and child support do not go unmanaged during your informal break.
Just be sure to revoke the terms, if you ever get back together, as “I forgot” won’t be enough to break the terms of the contract, once you’re in probate court.
What About Personal Stuff?
Like a prenup, postnuptial agreements are primarily designed to give spouses financial protection. However, in recent years, we’ve seen a marked increase in “lifestyle clauses.”
Lifestyle clauses are personal (rather than financially) centered, and outline the responsibilities of the respective spouses while married. For example, pet maintenance, chore charts, physical appearance, or even how much in-law interaction each is required to have.
The challenge—as you might have guessed—is enforceability. Even in fault-divorce states, most courts don’t like micromanaging a couple’s personal relationship, which means that often enforceability of these clauses comes down to the opinions of one particular judge.
That being said, one lifestyle clause that’s arguably pretty enforceable (at least in Texas, anyway), is an infidelity clause, which puts a price tag on cheating. While this type of inclusion probably wouldn’t be enforceable in a state like California (a no-fault state), it’s hard to see how a Texas court wouldn’t. Especially since adultery is already one of the four grounds for a fault-based divorce.
Is There Anything A Postnuptial Agreement Can’t Do?
As nice as it would be, postnuptial agreements can’t grant full-access, get-out-of-jail-free cards for everything that might come up in your marriage.
According to the Texas Family Code, postnuptial agreements cannot:
- Limit parental responsibilities (such as custody and child support);
- Require your spouse to commit a crime, or do anything illegal;
- Be used to defraud creditors; or
- Stipulate terms of intimacy and/or reproduction.
Who Should Consider a Postnuptial Agreement?
Not everyone needs or even wants a postnuptial agreement. However, you may want to consider getting one if you:
- Just received an inheritance;
- Are looking to open a business, and want to mitigate risk;
- Are about to become a stay at home parent;
- Need to convert separate property into community;
- Want to divide debt;
- Have children from other relationships;
- Are thinking about separation; or,
- You always wanted a prenup, but never got around to drafting one earlier.
In addition, many couples use these particular agreements as a way to recommit their loyalty to one another.
How to Execute a Valid Postnuptial Agreement?
If you want your postnuptial agreement to stand the test of time, make sure yours is:
- In writing;
- Voluntarily signed by both parties;
- Fair to both sides;
- Represents a full disclosure of all assets; and,
- That it does not violate the law.
While it’s not explicitly prohibited, it’s also best not to share attorneys on this one. Without separate attorneys, it’d be too easy for one side to argue they felt pressured into signing something they didn’t understand. Hence, do yourself a favor and make sure you each choose your own lawyer.
Wait… Can’t I Just Fill Out a Form or Something?
Technically, you could. However, it’s generally not a good idea to use a “fill in the blank” form for this type of contract. Here’s why.
Part of a contract’s enforceability revolves around its clarity. If someone doesn’t know what they’re signing—or, if the terms could, arguably, be interpreted another way—then it would be hard to hold them to a specific obligation.
This is the problem your judge might face, if you try to present them with a fill-in-the-bubble postnuptial agreement you found off the internet. These catch-all forms might be easy and cost-effective, but they’re often too vague. And, without being specifically tailored to your unique situation, it might have a hard time holding up under judicial scrutiny. (Never mind that you know that your spouse knew, and that they knew that you knew they knew.) Quite simply, if your judge isn’t also in the know, then it won’t hold up.
The best way to ensure your postnuptial agreement is fully enforceable, is to discuss it with your family law attorney.
Postnuptial Agreement Attorneys in Texas
Just because you already tied the knot, doesn’t mean you can’t still benefit from a prenup-type agreement. Spouses looking for ways to address some of the same issues can easily do so by drafting a postnuptial agreement.
For more questions about how to draft your Texas postnuptial agreement, Neal Ashmore wants to hear from you. Call us today at (972) 436-8000, or schedule a consultation online, and let us help you ensure your contract can stand the test of time.
