Whether you have been married for just a few days or a few decades, your marriage could benefit from a postnuptial agreement. These agreements share many similarities with their pre-marriage sibling, the premarital agreement, however, their differences are significant enough to warrant a separate discussion. We recommend reviewing our brief overview of premarital agreements for Round Rock here.
At its core, a postnuptial agreement is one signed between married spouses. This is in contrast to a premarital agreement, which is signed by an unmarried couple in anticipation of marriage. Generally, postnuptial agreements exist to clarify the rights and obligations of the spouses. Additionally, postnuptial agreements tend to amend previous agreements, such as an existing premarital agreement, though they can also exist as stand-alone documents.
Married couples often seek postnuptial agreements to address material changes to the relationship’s circumstances, such as a recent inheritance, changes to one of the spouse’s professional practice, or children from a previous marriage reaching the age of majority (that is, eighteen years old).
Similar to the broad power of premarital agreements, postnuptial agreements can address a variety of topics, including property classification and the spouse’s marital responsibilities. A brief note on property classification: In Texas, property acquired during the marriage is generally considered “community property.” This means that both spouses have an equal ownership interest in the property and, in the event the marriage is terminated, an equal share of that property. For an in-depth overview of community property, please consult our blog post on the topic here.
Couples routinely use postnuptial agreements to protect one spouse’s inheritance. In Texas, one spouse’s inheritance could be considered community property. In that case, a postnuptial agreement could help avoid marital tension by classifying the inheritance as that spouse’s separate property.
Blended families also turn to postnuptial agreements. Many couples (re)tie the knot without understanding the basics of property distribution in the event a spouse’s death. Under Texas law, if a spouse passes away during the marriage, his or her assets pass to the surviving spouse. But this may not reflect the desires of spouses with children from previous marriages. Furthermore, the claim of the children to a surviving spouse’s assets has priority over the claims of children from previous marriages. Taken together, these default rules can lead to some bizarre results.
In one famous example, Husband and Wife passed away together in a plane crash. The couple’s children then got into a protracted legal battle with the children from Wife’s previous marriage. Much of the court testimony came from experts postulating on exactly which spouse had died first—an outcome surely neither spouse intended. A simple postnuptial agreement that protected the interests of all children could have avoided such a messy court battle.
Couples can also use postnuptial agreements to apportion their retirement accounts. Under Texas law, retirement accounts accrued during the marriage are community property. This rule affects even couples who have kept their accounts separate for decades. Postnuptial agreements can be used to ensure that such retirement accounts (and all future contributions) are apportioned to the spouses separately.
Finally, sometimes couples who were initially offput by the idea of a premarital agreement later come to understand the value such agreements only after they’ve tied the knot. Luckily for those couples, postnuptial agreements can be made at any point during the marriage. Similarly, postnuptial agreements can be used to reaffirm the spouses’ commitment to their marital duties. Simply having the commitment in writing can go a long way to demonstrate the seriousness of the spouses.
Now that we have an understanding of the benefits a postnuptial agreement can bring to a marriage, let’s examine the requirements for validity. After all, the benefits that come with a well drafted postnuptial agreement can be put into serious jeopardy if the document is invalid.
To be effective, a postnuptial agreement must (1) be in writing, (2) signed by both parties voluntarily, and (3) contain a full financial disclosure or waiver thereof. Simple enough, right? Not so fast.
The definition of “writing” may encompass more than you thought. For example, a handwritten note or email chain could both constitute a writing. Several couples have expressed their surprise that their email correspondence had already formed the backbone a binding legal document. Remember to seek professional counsel if you are considering a postnuptial agreement.
Postnuptial agreements must also be signed voluntarily. This is a catch-all requirement designed to deter fraud and other unconscionable behavior. Whether an agreement is “unconscionable” is often a fact-driven inquiry, the nature of which can lead to what seem like confusing rulings. For example, one court found that a husband’s threat to take away his wife’s children unless she signed the document to be unconscionable behavior. But another court found that any party who participated in negotiations over the agreement could not have signed the document involuntarily.
Finally, postnuptial agreements must contain a full financial disclosure by both parties or their express waiver of such disclosures. Even this requirement has led courts to issue mixed rulings. Once case dealt with an agreement whose financial disclosure contained outdated information. The court ruled that even though the term “full disclosure” generally requires up-to-date information, the husband, a certified public accountant, should have known the information was out of date.
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 Round Rock postnuptial agreement lawyers today.
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