If you are planning to marry in the near future, the subject of entering into a prenuptial agreement may have been broached by your future spouse. Your initial reaction may have been an emotional one given the negative connotation historically attached to prenuptial agreements. Before you dismiss the idea of a prenuptial agreement, Dallas divorce attorney Rita M. Boyd discusses some common prenuptial agreement myths.
Myth: Only Wealthy People Need a Prenuptial Agreement
While it is true that the more debts and assets you bring into a marriage the more you may benefit from a prenuptial agreement, the truth is that neither spouse need be wealthy to benefit from a prenup. People commonly associate prenuptial agreements with divorce; however, they can also be used to make decisions during the marriage and in the event of the death of either spouse. In fact, a Texas prenuptial agreement can determine any (or all) of the following:
- 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.
- 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.
- The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
- The modification or elimination of spousal support.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
Myth: I Can Just Keep My Assets Separate and Do Away with the Need for a Prenuptial Agreement
Today, people are waiting longer to enter into a first marriage and frequently remarry after a first marriage ends in divorce. This means that both spouses are also more likely to bring significant assets into a marriage. You may think that simply keeping your assets separate once you are married does away with the need for a prenuptial agreement. Unfortunately, maintaining separate checking accounts and titling property in your name only does not assure that the property will remain your legal separate property in the event of a divorce. Texas is a community property state, meaning that assets acquired by either party during the marriage are considered marital property and, therefore, subject to division in a divorce. As such, simply depositing funds into a checking account with your name only on it or titling sticks, bonds, or real property in your name only will not protect the assets from division in a divorce. Moreover, assets you owned prior to your marriage could be inadvertently comingled during the marriage, turning a previously separate assets into community property. The only sure fire way to prevent assets from being divided in a divorce is to agree ahead of time on how they are to be handled in a prenuptial agreement.
Myth: A Prenuptial Agreement Won’t Be Upheld So Why Bother?
You may know someone or have heard about someone whose prenuptial agreement was challenged in court and ultimately not upheld. Do not let this prevent you from entering into one. Texas court have historically favored enforcement of prenuptial agreement as long as the agreement is properly drafted and executed. To successfully challenge a prenuptial agreement the challenging party must prove:
- The he/she did not sign the agreement voluntarily. OR
- That the agreement was unconscionable when it was signed AND, before signing the agreement, he/she:
- Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party.
- Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. AND
- Did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
The way to ensure that your prenuptial agreement with withstand a court challenge should it come to that is to work closely with an experienced divorce attorney when you draft and sign the agreement. Likewise, if your future spouse presents you with a proposed prenuptial agreement for you to sign, make sure you have your own attorney review the agreement before you sign it to ensure that your rights are protected.
Contact a Dallas Prenuptial Agreement Attorney
If you have additional questions or concerns about creating or executing a prenuptial agreement in Texas, contact an experienced Dallas prenuptial agreement attorney at Rita M. Boyd, P.C. to discuss your legal rights and options by calling 972-380-8000 to schedule your appointment today.