Premarital (prenuptial) agreements, colloquially known as “prenups,” have experienced a considerable rise in popularity in recent years. Premarital agreements are increasingly used by a diverse crowd including young professionals, individuals coming from previous marriages, and those who simply seek to have more input over the terms of their marriage than what is provided by the state’s default rules.
At its core, a premarital agreement is no different than any other contract. Just as a business might negotiate a contract with a vendor or client, the partners of a romantic relationship are free to negotiate their marital rights and obligations to each other.
The termination of a marriage – either through the death of a spouse or divorce – initiates a complex winding up process that touches all aspects of the couple’s lives. This time consuming and (often) expensive process proceeds according to the default rules set by the Texas legislature. Just as a will or estate plan can help avoid the complexities of probate court, a well drafted premarital agreement can avoid the risks of family court. The fact of the matter is that every married couple already has a marriage agreement, the terms of which have been set by the Texas legislature in the Texas Family Code.
But there is an alternative. Understanding that the default rules often fail to address the needs of all couples, the Texas legislature enacted the Uniform Premarital Agreement Act, which permits couples to create their own marriage agreements. Save for a few exceptions, this law gives couples broad power to craft agreements suited for their own needs.
Broadly speaking, many couples are interested in addressing many of the same issues in their premarital agreements, such as the disposition of property in the event of a spouse’s death. However, the terms of premarital contracts can be as varied and unique as the people for whom they are made.
The benefits of premarital agreements are many, however, we would like to focus on three right now: community property, debts and previous marriages.
In the previous section, we mentioned that the Texas legislature has set a number of default rules when it comes to marriage termination. One of these rules stipulates that all “community property” is to be divided equally between the spouses. Community property is all property that was acquired by the marital estate – that is, all property acquired while the couple was married. Make no mistake, the law’s use of the term “all” is expansive. Community property routinely includes all real estate, vehicles, personal property, retirement accounts, time shares, debts, mineral rights, securities, and businesses, among many others. Much of the time and expense of a typical divorce is spent determining the couple’s community property and its valuation. Many of our past clients have chosen to avoid the possibility of such protracted disputes though the use of premarital agreements that clearly delineate the couple’s community property and the spouses’ separate property.
Debts, too, can be community property. Debts are not limited to their common forms like mortgages or credit cards, but can also include business debts and even liabilities from past car accidents. A premarital agreement can ensure that a spouse is not unjustly saddled with such debts. Similarly, and possibly as a result of the unprecedented rise in student loan debt, we have seen an influx of younger clients who have opted for premarital agreements to ensure that their education debts remain separate property.
Finally, many of our clients have children from previous marriages. Premarital agreements can help parents protect the interests of these children by guaranteeing their rights to property. Otherwise, all property may go to the current spouse.
Many clients are unsure as to how to approach the topic of premarital agreements with their partners. The truth is there is no single way to approach the topic. Each person’s emotions, values, experience and personality will play a role in how they handle the subject. At Kirker Davis, LLP, we believe discussing the terms of the marriage presents a great opportunity for couples to grow together.
Instead of marrying, blindly bound by the state’s default rules, couples can reclaim their agency by creating a premarital agreement that addresses their specific needs. Additionally, the process of determining the best terms for your premarital agreement – we call it “negotiating lovingly” – provides couples with an exercise in frank, open communication.
Remember, a premarital agreement should ultimately be sought to strengthen the marital relationship and not the spouses individually. Keeping this in mind will help the future spouses focus on the couple’s collective goals and ensure a collaborative drafting process.
Contact our offices at (512) 746-7399 to speak with one of our San Antonio premarital agreement lawyers today. Additionally, if you would like to learn more from the lawyers who draft Kirker Davis, LLP’s San Antonio premarital agreements, please consult our free eBook.
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