Though premarital and postnuptial agreements play distinct legal functions, they borrow heavily from a shared legal and practical foundation. If you have not done so already, please take a moment to review our primer on premarital agreements here.
At its core, a postnuptial agreement is an agreement between married spouses which seeks to clarify the rights and obligations of the parties vis-a-vis each other. These rights and obligations often take the form of property classification (that is, classifying property as either community or separate property).
While not strictly necessary, many lawyers typically draft San Antonio postnuptial agreements for married couples who already have a premarital agreement (prenup). In this way, postnuptial agreements generally alter or amend pre-existing agreements. Of course, married couples are free to enter into postnuptial agreements even if they have never signed a premarital agreement.
Married couples seeking postnuptial agreements commonly cite a change in circumstances as a primary motivator. For example, past clients have sought postnuptial agreements after unexpectedly inheriting valuable assets, winding up a professional practice, or the marriage of grown children from a previous marriage, among others.
Though substantially similar to premarital agreements in many respects, postnuptial agreements have a few key differences worth highlighting.
As the name implies, a pre-marital agreement is one that is reached before the spouses have married, while a postnuptial agreement is only affective after marriage. This elemental difference between premarital agreements and postnuptial agreements goes far beyond a simple timing requirement. Instead, the difference is rooted in the statuses of the parties: a postnuptial agreement is one signed by two spouses, while a premarital agreement is signed by unmarried individuals in anticipation of marriage. In Texas, married couples retain certain legal privileges that extend far beyond what is provided to unmarried couples. The privileges are accompanied by heighted duties (such as the duty to support, the duty of confidentiality, and fiduciary duties). Daniel v. Daniel, 779 S.W.2d 110, 115 (Tex. App.—Houston [1st Dist.] 1989, no writ). Interestingly, married couples may not owe each other fiduciary duties where they have retained independent counsel. Toles v. Toles, 113 S.W.3d 899, 916 (Tex. App.—Dallas 2003, no pet.).
Additionally, the foundational differences between premarital agreements and postnuptial agreements give courts some discretion when determining whether to enforce such agreements. Through numerous cases, courts have examined a variety of questions when determining the validity of postnuptial agreements. We will discuss the various factors which can affect postnuptial agreements in more detail with a non-exhaustive list below.
Due to the sensitive nature (and significant impact) of legal agreements between spouses, Texas law requires several important steps for a postnuptial agreement to be legally valid.
First, the agreement must be in writing. While a document drafted by an experienced lawyer provides the most security, valid agreements could be reached through handwritten documents and even emails. All oral agreement, however, would be seriously vulnerable to a legal challenge in court, even if recorded. The reasoning behind the writing requirement is the weight of the agreements’ impact—written documents allow the parties to carefully review all the terms and provisions and reduces the chance of a miscommunication.
Second, postnuptial agreements must be signed voluntarily. Though “voluntarily” is not defined in statute, the term is generally understood to prohibit fraud, duress or any other form of unconscionable behavior that might diminish the decision-making capacity of one of the parties. Unconscionable behavior can come in many forms. For example, one court found that a husband’s threat to take away the wife’s child unless she signed the postnuptial agreement placed unconscionable influence on her decision to sign. As a result, the court found the agreement to be invalid. Matthews v. Matthews, 725 S.W.2d 275, 277 (Tex.App.–Houston [1st Dist.] 1986, writ ref‟d n.r.e.). In contrast, in one case the court found that a party who willingly negotiated the terms of a postnuptial agreement could not have signed the document involuntarily. Marsh v. Marsh, 949 S.W.2d 734, 743 (Tex. App.—Houston [14th Dist.] 1997, no writ).
Finally, the agreement must contain either a full financial disclosure or a waiver thereof. This final requirement is not as cut and dry as it may seem, though. Courts will look to the sophistication of the parties when determining whether a full financial disclosure existed. In one case, the court found a full financial disclosure even though the agreement failed to include an up-to-date valuation of a marital trust—the subject of the agreement. In finding the agreement valid, the court noted that the ex-husband was a certified public accountant and had seen the valuation of the trust by reviewing tax documents in recent years. Daniel v. Daniel, 779 S.W.2d 110, 117 (Tex. App.—Houston [1st Dist.] 1989, no writ).