Cedar Park Postnuptial Agreements Attorneys

Postnuptial Agreements: The Basics

In its most basic form, a postnuptial agreement is one signed between spouses. Couples that draft postnuptial agreements typically do so to clarify the spouses’ rights and obligations to each other. In addition, couples in Cedar Park frequently use postnuptial agreements to amend or update previous marital agreements. A significant change in the circumstances of a couple is one of the most common reasons for seeking a postnuptial agreement. Whether one spouse is expecting an inheritance or there has been a change in one of the spouses’ professional practice, or if there are children from a previous marriage that will soon reach the age of majority (eighteen years in Texas), a postnuptial agreement can help couples protect a variety of interests.  

What are the Benefits of Postnuptial Agreements?

The Texas Legislature has provided couples who enter into postnuptial agreements broad powers to address a variety of marital topics, including the spouses’ marital responsibilities and property characterization. A quick primer on property characterization: it is the process through which a court determines which assets are the spouses’ separate property, and which assets are the spouses’ community property. Community property is that property in which both spouses have an equal owner interest. Common examples of community property include vehicles and/or the marital residence. Texas courts proceed on the presumption that all property within the marital estate is community property. This means that the spouses bear the burden of proving that an asset is a spouse’s separate property. Because of the difficulties inherent in meeting the separate property threshold, many couples choose to include a property characterization provision within their postnuptial agreements. Including such provisions can provide clarity and avoid difficult questions later regarding the characterization of one’s inheritance, a treasured real estate asset, or any other interest in property. Couples in blended families can also benefit from postnuptial agreements. The law in Texas was drafted in a time when blended families were much more infrequent than they are today. Consequently, many of the state’s default rules can lead to some unwanted results for those with children from previous marriages. For example, if a married couple were to pass away, their estate would be inherited by the children of that marriage. But this result may not conform with the wishes of those who have children from two or more marriages. Many Cedar Park couples have used postnuptial agreements to protect the rights of the spouses’ children from previous marriages. In addition, some couples wish to draft provisions concerning their retirement accounts. These couples often have decades of contributions to their individual retirement accounts, and consequently, see no reason to change their arrangements. Postnuptial agreements can apportion retirement accounts in any way the couple wishes. Finally, it is important to note that no postnuptial is set in stone. The Texas Legislature understands that circumstances, goals and even values can change over time. To help ensure that couples can attain postnuptial agreements that reflect their current wishes and desires, the law provides couples the option to amend any postnuptial (and premarital) agreement at any time—the agreement need only conform to the requirements discussed above.  

Postnuptial Agreements: What are Their Limits?

Up until this point, our discussion has largely focused on the benefits and broad powers of a postnuptial agreement. But we should now turn our attention to the limits on the powers of postnuptial agreements. The Texas Legislature has chosen to enact limits that effectively place thresholds on a postnuptial agreement’s validity. This means that unless a few key conditions are satisfied, a postnuptial agreement will not legally bind the parties. Given the dramatic risks that stem from an agreement’s invalidity, it is important to give special attention in meeting these requirements. To be legally binding, a couple’s postnuptial agreement must:

1. Be in writing,
2. Be voluntarily signed by both parties, and
3. Contain a full financial disclosure by both parties or an express waiver thereof.

The writing requirement may be the most straight-forward requirement, however, there still exists some room for ambiguity. For example, a “writing” may encompass more than just a written document. Email exchanges and even text messages can constitute writings, so it is important to engage with an experienced lawyer before discussing any terms with one’s significant other, lest a term be unintentionally incorporated into the final agreement. Once a final written agreement has been compiled, it must be voluntarily signed by the parties. The operative word in this prong is “voluntarily.” Whether an agreement is voluntary depends on the behavior of the parties, and whether that behavior was “unconscionable.” The Texas Legislature included this prong to act as a catch-all in preventing fraud and abuse by unscrupulous spouses. One result of this broad definition has been a series of conflicting interpretations as courts struggle to standardize the term. In one case, a husband’s threats to take his children away unless the wife signed the agreement was held to be unconscionable, and thus her signature was not voluntary. But in another case, the court found that any negotiations by the parties created a presumption of voluntariness. The advice of an experienced lawyer can help you walk the line between negotiation and improper influence. Finally, all postnuptial agreements must include a full financial disclosure by both spouses, or an express waiver thereof. This prong was enacted to ensure that both spouses can be fully informed before signing. However, this too has led to mixed results by courts. In one case, the judge found that a wife’s outdated financial disclosure would not invalidate a postnuptial agreement because the husband was CPA, and therefore, should have known the information was out of date. For a closer look at postnuptial agreements, please consider reading our eBook on the subject here. And if you would like to discuss your postnuptial agreement options with a Cedar Park lawyer, please contact our offices at (512) 746-7399 to speak with an experienced postnuptial agreement lawyer today.

Other Locations we serve: 

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