The polls are in and marriage is trending down. After watching so many of their parents go through nasty divorces, many couples are putting off knot-tying until much later, or just deciding it’s not worth it altogether. After all, who wants to risk their hard-earned education, career, or business on a fifty-fifty chance that things might work out?
While we don’t blame these savvy couples for being warry, there’s no reason to scrap the whole marital institution, altogether. Especially when a prenuptial agreement can easily be drafted to protect them against the possibility of an unsavory end.
Here’s are answers to some of the most commonly asked prenuptial agreement questions, and how Neal Ashmore can give you the peace of mind you need to take that walk down the aisle.
What is a Prenuptial Agreement?
And why would you want a contract like this?
Because when it comes to divorce, the division of marital assets is one of the biggest things people fight about. A battle ground that could ultimately end up costing you significant amounts of time, money, sleep, and overall sanity to litigate—things you suddenly don’t have to worry about, with a valid prenup in place.
Essentially, a prenup acts as an insurance policy for your marriage, providing answers to some of the big questions of what happens to your stuff in a divorce, ensuring that any decisions you make about your relationship—even its end—are made for the right reasons.
So What, Exactly, Does a Prenup Cover?
Prenuptial agreements are primarily designed to give partners financial protection. Hence, according to the Texas Family Code a prenup can be used to:
- Subvert community property laws;
- Identify separate property;
- Assign debt;
- Direct inheritances;
- Dictate alimony;
- Outline financial responsibilities during marriage; and,
- Allocate the division of assets, upon divorce.
What Can’t a Prenup Cover?
Your marital insurance policy can’t cover everything. Some of the things your prenuptial agreement cannot do are:
- Limit an obligation of child support or dictate custody;
- Induce your spouse to commit a crime;
- Operate as a means to defraud creditors;
- Convert separate property into community property;
- Require sexual intimacy; or,
- Dictate number of children.
Your agreement also has to be signed and executed prior to marriage. It must also be fair to both sides, and in Texas, this means that you’ll both need separate representation.
What About Lifestyle Clauses?
From how much weight gain is allowed, to chore lists, to how many holidays can be spent with the in-laws, we’ve seen some pretty creative prenups in our time. However, just because you put something into writing, doesn’t necessarily mean a court will enforce those terms down the road.
These “lifestyle” clauses are a relatively new concept, so there isn’t a lot of legal precedent to go off of, as far as how they’re handled. Hence, enforceability often comes down to the opinions of an individual judge.
One of the most common lifestyle clauses we see concerns infidelity, where one spouse would be awarded more money during divorce, if the other was unfaithful. Since Texas does technically still allow for fault-based divorces, there’s a good chance a judge would uphold an infidelity clause, especially if the terms were clear and applied to both sides equally.
Other unusual terms that might, nonetheless, be enforceable, could include those that:
- Outline who is responsible for paying which bills while married;
- Clarify the scope and ownership of intellectual property;
- Assign pet upkeep, including care costs;
- Dictate pet custody, upon divorce;
- Summarize permissible uses of genetic material (such as with IVF, including under what circumstances it’s allowed, and when it isn’t); and even,
- What kinds of posts the couple can share on social media (especially if one side has a job that could be significantly impacted by the wrong kind of content).
This isn’t an exhaustive list, and if you have a specific question in mind, it’s best to simply discuss it with your family law attorney for the most up-to-date advice.
Who Should Get a Prenup?
Um… everyone? (We’re only half kidding, here.)
In days of yore, prenuptial agreements were primarily seen as a way for wealthier partners to protect their assets against the wily temptations of a gold-digging spouse. However, those stigmas are quickly expiring, and these days almost every marriage could benefit from a prenuptial agreement.
You should especially consider a prenup, if:
- There’s a big wealth disparity between you;
- One of you has an inheritance or business to protect;
- Both of you have a lot to lose;
- One of you has significantly more debt than the other;
- You’ve been married before; or,
- If either of you has children.
In short, a prenup is just good sense, making sure that the right assets go to the right people, upon death or divorce.
But Won’t That Mean Our Love Isn’t True?
Listen, you don’t get auto insurance because you don’t love your car. You take out a policy because you do love your car. You want to make sure both you and your car are taken care of, if you get in an accident.
A prenuptial agreement operates the same way. If you stay married your whole life, then all it does is collect dust in your filing cabinet. However, if you do get divorced, then—just like that auto insurance—your prenup will make sure that both you and your spouse are taken care of during divorce, and that you don’t go bankrupt doing it.
When Should I Not Sign a Prenup?
Although prenups have a lot to offer, that doesn’t mean you shouldn’t be cautious. When deciding whether or not to sign, be wary of agreeing to a preputial agreement, if:
- The terms are not fair;
- There hasn’t been a full disclosure of facts;
- You feel coerced;
- You don’t have legal representation;
- One party has more negotiating power than you; or,
- You haven’t been given enough time to properly consider the terms.
Ultimately, this is a decision that you need to feel good about, so if something is triggering your alarm instinct, don’t sign. And if that means never signing, then that’s okay, too.
I’m Already Married… Did I Miss Out?
On a prenuptial agreement? Yes. In order to be valid, a prenuptial agreement must be finalized prior to marriage. However, all is not lost!
Couples who are already married who, nonetheless, still want to address some of these issues, can do so through a postnuptial agreement. This contract can outline many of the same things, with many of the same functions and limitations of its prenuptial counterpart.
If a marriage agreement is something you’re interested in, be sure to contact your family law attorney to discuss your options.
Prenuptial Agreement Attorneys in Texas
There are a lot of things to worry about when you get married, but the financial impact of a future, hypothetical divorce shouldn’t be one of them.
For more questions about how a prenuptial agreement can work for your relationship, we want to hear from you. Call Neal Ashmore today at (972) 436-8000, or schedule a consultation online, and let us help you take that next relationship step with the peace of mind you deserve.