Over the last several decades, our state, and Central Texas in particular, has seen a dramatic rise in the popularity of premarital agreements. No longer are such agreements only enjoyed by the wealthy and vain. Today, couples from all walks of life are reaping the benefits that this simple, but powerful tool can offer. Even with this increased popularity, however, outdated misunderstanding in the general population exists. Please read below to learn just a few of the benefits premarital agreements can offer and whether a premarital agreement may be useful in your anticipated marriage.
Just like all other contracts, premarital agreements are simply agreements between two parties. Businesses and individuals routinely enter into contracts to protect their rights and clearly describe the responsibilities of the parties; and there is no reason that soon-to-be married couples should not also be able to take advantage of this ability. Of course, those considering a premarital contract may have to confront the common misconception that premarital agreements reduce a relationship down to a purely contractual nature. They do not. In fact, many are surprised to learn that all married couples enter into a legally binding contract upon marriage, the terms of which are drafted by the Texas Legislature. Within the sections of the Texas Family Code are hundreds of provisions covering a broad array of topics, including child support, property division and child custody. Couples who refrain from drafting a premarital contract simply choose to accept those default terms. For many couples, the state’s default rules produce many benefits even if not every provision is perfect or even necessary. The unique circumstances of some couples, however, may make the substitution of those default rules an attractive option.
Texas’ version of the Uniform Premarital Agreement Act, permits Texas couples anticipating marriage broad power to shape their own premarital contracts. By putting the power back into the hands of these couples, the state has permitted marriages that more closely conform with couples’ specific values, goals and circumstances.
Now that we have a basic understanding of how premarital agreements operate, we can drill down into why so many couples have turned to them in recent years.
Without a premarital agreement specifying otherwise, courts will presume that all property of the marital estate is “community property.” In contrast to “separate property,” community property is that property in which both spouses enjoy an equal ownership interest. Common examples of community property include a house purchased by the couple, vehicles and retirement accounts. Upon the dissolution of the marriage, the community property presumption will see that all property of the marital estate is divided equally between the spouses without regard to the spouse’s individual efforts to acquire said property. The community property presumption applies not only to assets—liabilities (often in the form of debts) are also shared between the spouses. For couples with significant student loan debt (like many of the couples in Cedar Park), community debts may not align with the couple’s goals or wishes. Premarital agreements have been used by many such couples to ensure that the spouse’s separate debts remain their separate property.
Another common reason for couples to seek the benefits of a premarital agreement is the existence of children from a previous marriage. Under Texas’ default inheritance rules, the children of a current marriage have first priority to the property of their parents. Many blended families view this default rule as favoring the children of their subsequent marriage at the expense of their children from previous marriages. For parents who wish to safeguard the interests of their children from previous marriages, premarital agreements can provide valuable peace of mind.
Up until this point, we have focus solely on the numerous benefits that premarital agreements can bring to couples. But let us now turn our attention to some of the limits of premarital agreements. When the Texas Legislature passed the Uniform Premarital Agreement Act, it placed a few important limits on what Texans could include in their agreements. Most importantly, the Legislature strictly prohibited any provisions that modify or eliminate a child’s right to support. Consequently, no premarital agreement may include a provision that sets or waives child support payments. Texas law is clear in its requirement that the determination of appropriate child support obligations may be determined only by state judges in accordance with the best interest of the child[LINK TO CHILD SUPPORT LANDING PAGE].
Another important limit on the power of premarital agreements concerns crime. Specifically, no premarital agreement may include provisions that implicates criminal behavior. This means that any premarital agreement with a provision that requires any party to commit an act prohibited by the Texas Penal Code, the agreement will be found unenforceable in its entirety. Though premarital agreements are rarely contested on these grounds, the severity of an unenforceable premarital agreement warrants its inclusion here.
Many who learn the benefits that premarital agreements can bring to a relationship are, subsequently, eager to share the idea with their significant others. However, as we mentioned above, biases against premarital agreements are held by many who do not understand their benefits. Some feel that such biases can make broaching the subject with a loved one especially complicated. While the topic may be a sensitive one, we believe that couples who engage empathetically stand to benefit from such a conversation.
One strategy that has been known to bring success is a steadfast focus on the couple’s shared goals. By proceeding delicately, and always focusing on “our” benefits rather than “my” benefits, couples can engage in a frank discussion that can also act as a powerful teambuilding exercise. An approach where couples “negotiate lovingly” is the most likely Whether the shared goals concern property characterization, children, or retirement goals, a premarital agreement can be an important step on the path to those goals’ realization.
Are you interested in learning more about premarital contracts? If so, please take a few minutes to consult our eBook, which provides a detailed overview of premarital (and postnuptial) contracts. For those interested in discussing how a premarital agreement could help their anticipated marriage, please contact our offices at (512) 746-7399 to speak with a Cedar Park premarital agreement lawyer today.