Pre Marital Family Law
A pre-marital agreement is an agreement between persons about to marry in which they may agree to alter the rules regarding marital property. Pre-marital agreements are authorized by the Texas Constitution and are frequently utilized by persons who are marrying after a divorce. A pre-marital agreement does not require any consideration to be effective. Pre-marital agreements become effective upon the marriage of the parties.
There is no single type of pre-marital agreement and the parties have the ability to design an agreement which fits their particular needs. Pre-marital agreements range from the complete elimination of any community property during the marriage to the recharacterization of only some future community property assets as separate property. The parties to a pre-marital agreement may contract with respect to the rights and obligations of the parties in any of the property or either or both of them whenever and wherever acquired or located. The agreement may be used to establish the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or other manage or control property. The agreement may provide for the disposition of property on separation, marital dissolution whether by annulment, divorce or death or upon the occurrence or nonoccurrence of any other event. Pre-marital agreements may modify or eliminate spousal support. They may be used in conjunction with estate planning and in the preparation of a will, trust or other arrangement. They may be used to control the disposition of ownership rights in an insurance policy or to determine the disposition of death benefits from an insurance policy. The pre-marital agreement can even provide the choice of law governing the construction of such an agreement. Pre-marital agreements may be used for virtually any purpose, including personal rights and obligations, which does not violate public policy or a statute imposing a criminal penalty.
However, the right of a child to receive child support cannot be adversely affected by a pre-marital agreement.
In order to successfully overturn a pre-marital agreement, the party against whom enforcement of the agreement is sought must prove that the party did not sign the agreement voluntarily or the agreement was unconscionable when it was signed and before signing the agreement, the party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided and did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
The term, “unconscionability” is not defined in the Texas Family Code and Texas courts have turned to commercial law cases in order to construe whether a premarital agreement is unconscionable.
Richard T. Sutherland has been counseling parties for more than 40 years about the use of pre-marital agreements. He has written many such agreements and has reviewed many prepared by other practitioners.