In case you’re wondering what a post-nuptial agreement is, it’s basically just like a pre-marital agreement. The only difference is that pre-marital ones are signed before the marriage and post-nuptial ones are signed after the wedding. Usually, the motivation between a prenup agreement and a post-nuptial agreement are not the same. In Texas, you are allowed to sign a post-nuptial agreement that includes part or all of your community property. The separation of one spouse’s income or both spouse’s income is commonly a part of such agreements as well. This means that when you sign the agreement, you agree that your spouse’s income will be his or her separate property and your income will be yours as well. Furthermore, this means that if a divorce were to occur, your spouse will not be able to claim any part of that income. If you sign a prenup or a post-nuptial agreement, the court will not try to ‘meddle’ in your affairs at the time of your divorce, if you were to divorce.
Turning Separate Property Into Community Estate
If you want your separate property to be a part of your community property, you can also specify this condition in your pre-nuptial or post-nuptial agreement. When you sign the agreement, the separate property will automatically become part of the community estate. This is of course different from transferring the title of your property to your spouse.
Requirements for Post-Nuptial Agreements
So you think that you and your spouse are into this idea of signing a post-nuptial agreement. What must you do? First, you need to comply with the requirements set by the state of Texas. If you fail to meet these requirements, your post-nuptial agreement may not be considered valid and therefore cannot be enforced. So what do you need?
- The post-nuptial agreement must be made in writing – This sounds a lot like a last will and testament type of document, doesn’t it? Well, if your agreement is not in writing, the court will not be able to honor or enforce it.
- The agreement must be signed without any kind of fraudulent activity or intentions – when you sign the document and fraud is somewhat involved, the court will later consider it invalid. When signing it, both parties must be free from duress and other unfair influence. If one party fails to sign the agreement, or if it was signed under duress and other types of pressure, your spouse can challenge it and the court can consider it invalid.
- There should not be any withholding of information that could lead the spouse to sign the document – If later on, your spouse will challenge the agreement due to the fact that you withheld information prior to his or her signing of the document, to get your spouse to sign it, the court can invalidate your post-nuptial agreement. Of course, your spouse will have to present solid evidence before this could happen.
Motivating Factors in Signing a Post-Nuptial Agreement
Usually, when one spouse at the time of marriage is laden with debts and no assets, while the other has plenty of assets and no debts, a post-nuptial agreement may be necessary. If you are the one who has assets and no debts, you may want to protect your assets from creditors. Signing a post-nuptial agreement does not mean that you are keeping your assets out of your spouse’s reach – it could merely mean protecting your assets for your future as a married couple. A post-nuptial agreement does not have to mean that you’re gearing up for divorce, or considering the possibility of it. Your assets could be sought by creditors and it could mean complete financial downfall in your marriage. A post-nuptial agreement could help prevent that.
Of course, there are also people who draft a post-nuptial agreement when they are on the verge of a breakup, like when they are undergoing counseling. Signing an agreement -depending on the terms of the agreement – can decrease the level of mistrust between you and your spouse.
Another instance when married couples sign a pre-nuptial agreement is when they are about to embark into a new business venture, expanding a business or when they receive a certain inheritance. If you are about to face a certain risk, it would be ideal to protect your spouse’s assets from that risk. You can even transfer your existing assets to your spouse, to protect those from the same risk as well. An excellent example for this is when you are about to take out a loan for your business. Signing a post-nuptial agreement transferring your property to your spouse would protect those assets in case something goes wrong in your business or loans.
Where Do You Start?
Post-nuptial agreements may sound somewhat intimidating for a married couple, but it’s not something you should fear. You should contact a trusted family law attorney in case you’re considering this option, so that you can be guided accordingly.
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