The short answer is that prospective spouses who enter into a premarital agreement may agree to a range of issues as broad as their imaginations will allow. All prospective spouses can agree to a division of their respective household responsibilities, the payment of support, and living expenses, the sharing of child rearing responsibilities, the religious upbringing of the children, the procedures for conflict resolution, and the disposition of the property should the relationship end.
Texas Family Code Section 4.001 defines premarital agreement as follows: ” ‘premarital agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage”.
The agreement must be in writing and signed by both parties but unlike other contracts, consideration is not required to be enforceable. Essentially it is a contract between prospective spouses wherein they may contract or agree to the following non-exclusive list:
- 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, or 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 a 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.
What Are The Biggest Misconceptions About Premarital Agreements?
- Premarital agreements lead to more divorces.
- Entering into premarital agreement indicate you don’t trust your prospective spouse.
- Premarital agreements must address all property owned by the prospective spouses.
- Premarital agreements must address all aspects of divorce.
What Is The Importance Of Premarital Agreements In High Asset Marriages?
- If properly drafted, a premarital agreement is enforceable in addressing the property owned by the spouses involved in a divorce or upon the death of one of the spouses.
- It is important for the spouse with significant assets to control the distribution of their property to protect the future of their children.
- It reduces the conflict if a divorce or death of one of the spouses occurs.
- It takes the control away from the courts and places it with the spouses.
Is A Premarital Agreement A Must For all Couples?
A premarital agreement is not required by Texas law. In our world of large percentages of marriages ending in divorce, it surely is a tool to consider. Many still think it shows a level of distrust between the prospective spouses and decline to enter a lifelong commitment to marriage with a premarital agreement. A premarital agreement may be a good option when:
- One or both spouses are bringing significant debt to the marriage;
- One or both spouses are previously married;
- One or both spouses have children by previous marriages;
- One or both spouses have significant assets; and,
- One of the spouses is significantly more wealthy or poor than the other.
When Do You Recommend Couples Discuss Premarital Agreements?
Premarital agreements must be discussed soon after a relationship gets serious if a prospective spouse intends to make it a prerequisite to marriage.
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