Premarital and Postmarital Agreements


A premarital or postmarital agreement is a contract between persons who are about to marry that provides protection from the creation of community property and/or protection of separate property during marriage.    A court may not divest a spouse during dissolution of marriage from his or her separate property.   “Community property” is the only property a court has the discretion to divide upon divorce.   A marital agreement usually identifies as separate property all assets and liabilities, and the values of the property, existing at the time of the marriage.   The parties  can then agree that all such property shall remain separate, and that any increase or growth of, or interest earned upon such separate property (which would otherwise be community property) also remains separate property.   A divorce court cannot divest a person of their separate property if that property is found to part of a spouse’s  separate estate.   To effect a complete partition and elimination of separate property accrued during the marriage, in addition to a premarital agreement, the parties must enter into a postmarital agreement also.
A postmarital agreement is similar to a premarital agreement, other than it is executed after the marriage to effect a post marriage partition of property.   The legal effect can be the same in any case and the rules of enforceability are also generally the same.

Who should use a premarital or postmarital agreement?

While most premarital agreements are written in cases where at least one of the parties has amassed a large separate estate prior to the proposed marriage.  Any couple who wants to decide in advance how property is to be divided in the event of a divorce or death, rather than leave this decision to a divorce or probate court, should consider a premarital agreement.
Another popular reason for a premarital agreement is to protect the separate property status of spouses who are empty nesters.    It is becoming very common for older persons to marry who have children from prior relationships, and who also have a desire to protect their heirs from the ambiguity of the property rules that apply during dissolution of marriage.   Many times, it would be prudent to identify which property shall remain the separate so that when the marriage dissolves by divorce or death, the estate can be easily distributed, subject to certain probate claims by surviving spouses.   A marital property agreement can resolve the problems associated with the presumption of community property during the dissolution of marriage, as well the conflicting claims of one property estate against the other.   A well drafted marital property agreement can also mitigate issues related to surviving spouses claims which might conflict with the intention of the decedent spouse in the case of dissolution of marriage by death.

What can be included in a premarital or postmarital agreement?

The Texas Family Code contains specific provisions related to the establishment and enforcement of pre and post marital agreements.   In general, Texas courts allow persons the freedom to do whatever they want with their property.    Virtually anything that is not fraudulent, criminal or against the public policy of the state can be agreed to in a pre or post marital agreement.Can both persons use one attorney in preparing a premarital agreementWhile one attorney is all that is necessary to draft the premarital agreement itself, each party to the agreement should use their own counsel to prepare the schedules of assets and liabilities to be included in the agreement, review the agreement, and explain how it affects their rights.

Can a premarital agreement be changed, amended, or revoked?

Premarital agreements can be amended or revoked only in writing.   Physically destroying a Pre and Post marital agreement will not defeat the agreement. A Pre and Post marital agreement may also expire by its own terms, either in part or in total. The agreement, however, must be explicit in its terms to evidence the intent of the parties as to which portions of the agreement will expire.

Although we want to protect the majority of our separate assets, can we also allow for some creation of community property?

A well-drafted Pre and Post marital agreement can provide for the creation during the marriage of some community assets, such as a homestead, bank accounts, or vehicles. Again, it is important to explicitly define how the community assets are to be created and how the remaining assets would be affected.

How can I ensure the Pre and Post marital agreement will be upheld in a court of law at the time of divorce?

Above all, it is important to create a contract that is unequivocal and precise as to the intent of the parties. Courts are bound by the agreement as long as it is proven that there was full and complete disclosure of all assets and liabilities prior to signing the agreement, that the agreement itself is not unconscionable by its terms, and that the parties entered into the agreement voluntarily. Also, after marriage, the parties should ratify their marital agreement by executing a “partition and exchange agreement.”  One further step is to ask the court to approve the agreement and declare its enforceability as a contract immediately after the marriage, before any question or dispute arises.

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