Practice
Area

Media

Georgetown Postnuptial Agreements

BACKED BY YEARS OF EXPERIENCE

Whether you just returned from your honeymoon or you are planning a 25th anniversary celebration, it may be a good time to consider a postnuptial agreement. Though many are familiar with their pre-marital cousin, the prenup agreement, few have as good of an understanding of the benefits of postnuptial agreements. Both types of agreement can achieve similar results, however a few key differences warrant a separate examination. If you would like to get up to speed on premarital agreements, or “prenups,” we recommend reviewing our brief overview of prenups here.

Postnuptial Agreements: An Overview

In contrast to the premarital agreement (“prenup”), which is signed in anticipation of marriage, a postnuptial agreement is one that is made between spouses. Though there are many reasons to use postnuptial agreements, we will focus on three of the most common here. First, many couples use postnuptials to clarify or reaffirm their rights and obligations. Another common reason for couples to draft a postnuptial is to amend or modify an earlier premarital or postnuptial agreement. Finally, some couples will use a postnuptial agreement to address a significant change in the spouses’ circumstances, such as a change to a professional practice, a recent or pending inheritance, or a significant life event for the children of a previous marriage.

What Can a Postnuptial Agreement Do for Me?

The Texas Legislature has made it clear that spouses should have broad authority to use postnuptial agreements to address a wide variety of circumstances, such as property characterization and the spouses’ marital responsibilities. Property characterization is the process by which the marital estate’s property is determined to be either “community property” or the “separate property” of one of the spouses.

Community property is that property which is owned jointly by the spouses. A common example of community property for many couples is their principal residence, which is typically purchased during the marriage. Both spouses have an equal ownership interest in all community property, and in the event of the marriage’s termination, both spouses are entitled to an equal share. Please consult our overview of community property blog post for a more in-depth analysis of community property here.

In Texas, an inheritance bestowed during the marriage is presumed to be community property. For couples who wish to avoid tension in their relationship, a postnuptial agreement can offer peace of mind by clarifying their rights, if any, vis-a-vis the spouse’s inheritance.

The increasing prevalence of blended families has also led to a rise in postnuptial agreements. Many people remarry after having children from a prior marriage. But this change can lead to some unintended consequences. Texas family law was largely written before the rise of blended families. Consequently, some aspects of the law may not conform to all families’ desires. For example, when a spouse passes away, his or her separate property will automatically pass to the other spouse. But this may not be the desired outcome for all couples, especially couples with children from previous marriages. Furthermore, the children of the surviving spouse may have a priority claim over the children of the deceased spouse. Taken together, these default rules can lead to some puzzling results.

In one notable case, a Husband and Wife couple tragically perished in an airplane accident. Over the next several years, the children from the wife’s previous marriage engaged in a brutal court battle with the child of the late spouses over control of the couple’s estate. Surely, none of the parents involved would ever have wanted their children to spend their time dueling over their estates. A postnuptial agreement could have avoided the court contest by clearly clarifying the rights of all children involved.

Postnuptial Agreements: Ensuring Your Agreement is Validity

Due to the wide range of issues that can be addressed by postnuptial agreements, the Texas Legislature has set a few key requirements for such agreements to be valid. There are three key requirements: First, the postnuptial agreement must be in writing. Second, the postnuptial agreement must be signed by both spouses voluntarily. Finally, the postnuptial agreement must include a full financial disclosure or waiver thereof. Failure to satisfy any one of the three requirements could result in a costly inquiry or, in the worst case, an ineffective agreement.

The requirement that the postnuptial agreement be “in writing” may encompass more than you were thinking. Electronic communications such as email chains have been found to constitute “writings.” This has led many couples, to their surprise, to realize that some of their communications were incorporated into a postnuptial agreement.

Similarly, the postnuptial agreement must be signed voluntarily. This requirement was added to deter unconscionable behavior by one or both of the spouses. But what kind of behavior is “unconscionable?” Generally, the unconscionability enquiry is a fact-driven inquiry. Unfortunately, this has led to some divergent court decisions. For example, in one case, a husband’s threats to take away his wife’s children unless she signed the postnuptial agreement was clearly unconscionable. But in another case, a court ruled that an agreement signed after the parties had engaged in negotiations must have been signed voluntarily.

The last requirement is a full financial disclosure by both parties or an express waiver thereof. Like the conscionability prong, this requirement was designed to ensure fair dealing by the parties, but can lead to some interesting court rulings. In one case, the court held that the term “full disclosure” did not include up-to-date information because one of the spouse’s was an accountant, and should have known that the disclosure did not contain recent financial developments

If you would like to learn more about the benefits of postnuptial agreements, please consult our eBook here. You can also contact our offices at (512) 746-7399 to speak with one of our experienced Georgetown postnuptial agreement lawyers today.

Request Consultation

    Empowering Clients.

    Achieving Results. ®

    TESTIMONIALS

    • "The divorce process is not an easy one, but I always felt fully supported, informed, and guided by Chris and the staff. Chris always laid out the options, made me aware of the risks, and provided me with recommendations, but he also gave me the flexibility to work out things with my ex where I could, to speed up the process and avoid some legal expenses. I highly recommend Chris for family law representation. ”

      David - Divorce Representation

    • "I’m a lawyer myself and Holly helped me with my recent divorce. She did an amazing job. She covered all the little issues that would have collectively cost me a bunch of money in the long run if she had not been so detail-oriented and focused. She is a tenacious advocate for her clients who aims to resolve matters amicably but will fight tooth-and-nail for her clients if that is what it takes to reach a...”

      Anonymous - Holly is the lawyer who lawyers hire for their own divorces

    • "Chris handled my case professionally, efficiently, and demonstrated a very strong knowledge of family law. Chris took the time to learn and understand all aspects of my situation and used that knowledge to develop a focused strategy that led to a successful outcome. I highly recommend Chris. ”

      Martin - Excellent Lawyer

    • "Ashley Morgan and her paralegal Aleks were both so amazing to work with. They were second to none in responsiveness and work ethic. I would recommend her work to anyone looking for family law, and could not be happier with my decision to work with them. Just a great group of people who are knowledgeable and passionate about the work they do. ”

      Josh Campbell - Family Law

    • "This was as good an experience as you can possibly have with a divorce situation! Candice and Laurie were professional yet compassionate. They treated me with great respect and were always available to answer my questions. The best part is they always had my best interest at heart. I would highly recommend Kirker Davis and Candice Derelye and Laurie Theriot. They are the best! ”

      Susan Morris - A divorce situation

    • "This was my first time ever working with lawyers and words cannot express how grateful I am for Ashley Morgan and her team. I needed direction during a difficult time and she provided step by step service. Would highly recommend! ”

      Erik Jurado - Highly recommended

    • "I praise Attorney Alyse Donnelly for all the hard work and hours she put in my divorce case. I believe that her experience, knowledge, and quick thinking resulted in beneficial results on my behalf. Ms. Donnelly along with Paralegal Stacy O’Brien and Attorney Michelle Fontenot are definitely assets to the Kirker Davis law firm. ”

      Bertha Solis - My divorce case

    • "My experience with Kirker Davis has been amazing. Candice Deyerle has been my attorney and in just under a month she helped to correct severe deficiencies in my custody case. She and her team respond within minutes or hours to even the most mundane requests. From the moment I walked in the office, I was greeted with an exceptional level of service, and even the receptionist inspires class and confidence. I wh...”

      Daniel Kearns - Custody case

    • "From my first visit, I felt like Candice listened to every word I said and showed concern about my pending situation. My ongoing experiences throughout our working together, made me feel like they were genuinely concerned about me and my integrity. If I wandered off course, Candice would guide me back online! Fantastic results! ”

      Edward Novess - Fantastic results

    Austin Family Attorneys

    Is Divorce Imminent

    Download “The 4 Steps In Every Divorce” eBook so you can be better prepared

    Download Now

    Austin Family Attorneys

    Request Consultation

    A strategic step towards resolution

    Submit a Request
    • Austin Office

    • McKinney Office

    • San Antonio Office