When most of us imagine discussing marriage with “the one,” signing legal documents is not part of the picture. Whether the idea of signing a pre-nuptial agreement was your idea, or your beloved brought up the subject, broaching the subject of entering into a pre-nuptial agreement can be stressful. In fact, there was a time when the mere mention of a pre-marital agreement would send future brides (and grooms) running the other direction.  Societal changes along with a dramatic increase in the number of second (and subsequent) marriages, however, have resulted in a corresponding change in attitudes toward pre-nuptial agreements. If you are contemplating marriage, you may be wondering if you should ask for, or agree to sign, a pre-nuptial agreement.

What Is a Pre-Nuptial Agreement?

In the State of Texas, the Texas Family Code, Section 4.001 et seq. governs pre-nuptial agreements, also referred to as pre-marital agreements. According to that statute, a pre-marital agreement is defined as “an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.” Furthermore, the parties to a pre-nuptial agreement in Texas may contract, within the agreement, to any of the following:

  • the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
  • the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  • the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  • the modification or elimination of spousal support;
  • the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  • the ownership rights in and disposition of the death benefit from a life insurance policy;
  • the choice of law governing the construction of the agreement; and
  • any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child Support and Pre-Nuptial Agreements

One issue that cannot be decided ahead of time in a pre-nuptial agreement is child support as stated in the law “The right of a child to support may not be adversely affected by a premarital agreement.” The reason for this is that legally, child support is a right that belongs to the child, not the parent. Therefore, a parent cannot give away, or diminish, a child’s right to that support at a later date.

Why Would I Want to Enter into a Pre-Nuptial Agreement?

Traditionally, pre-nuptial agreements were suggested when there was a significant disparity in the value of assets and/or income between future spouses. Often, if a family fortune was involved, a condition of marriage was that a future bride/groom sign away his/her rights to the fortune in the event of a divorce. Today, however, pre-nuptial agreements are frequently used as a way to protect separate assets that both parties bring into a marriage. With people waiting longer to enter into a first marriage, and almost one in five Americans marrying for a second (or subsequent) time, it is more common for both spouses to bring considerable assets as well as children from a previous relationship into a marriage. The desire to protect assets and preserve them for pre-existing children is often the motivation for suggesting a pre-marital agreement.

Although those separate assets should remain separate, even in the event of a divorce, a number of factors could affect the division of assets in a divorce. Co-mingling assets, for example, can turn a separate asset into a marital asset. In addition, the income from separate assets is generally considered a marital asset. Finally, the terms of a pre-nuptial agreement can cover more than just the possibility of divorce. The distribution of your assets in the event of your death can also be covered by a pre-nuptial agreement, ensuring that your children, or other designated beneficiaries, receive their intended inheritance without regard to the state’s inheritance laws.

Contact a Texas Divorce Attorney

If you have additional questions or concerns about a pre-nuptial agreement, contact an experienced Texas divorce attorney at The Law Office of Jon R. Boyd by calling 972-332-0104 to schedule your appointment today.

Jon R Boyd

Jon R Boyd

Jon R. Boyd, B.B.A., J.D., is a Dallas native. He obtained his undergraduate degree in business administration from the Cox School of Business at Southern Methodist University, graduated with a law degree from the University of Houston, and has been licensed to practice law in Texas since 1979.
Jon R Boyd