Most people think of pre-nuptial agreements or “pre-nups” only as something rich people use to protect their property in the event a marriage ends in divorce. Pre-nups, however, are not only for the rich and not only just to keep one person’s separate property separate.
Some people want to preserve property for children of a prior relationship. Others want to clarify their rights and obligations to property and debt existing at the time of marriage and still others want to protect themselves from liability for their soon-to-be spouse’s debt- which could be personal debt or debt related to someone’s business interests. Of course, saving time, money and hard feelings if a divorce does occur is certainly a valid reason to have a pre-nup.
Texas is a community property state. At divorce, all property of the parties is presumed to be community. One asserting that he or she has separate property must prove the property is separate by clear and convincing evidence. This is often difficult to do if the divorce takes place ten, twenty or even thirty years into a marriage. (Do you maintain thirty years of bank records?) A pre-nuptial agreement can greatly simplify property issues, saving substantial time and expense in the event of divorce.
Under Texas law, property one brings into marriage is separate property, but it is not that simple. For example, if a woman owns a rent house when she marries (her separate property), many people are surprised to learn that the rental income from that separate property house will be community. Also, payment of certain expenses related to that property during marriage can result in significant community claims against the separate property. In a pre-nup, the parties can specify how their property will or won’t be affected during their marriage. There is nothing wrong with making it clear how family property or property one has worked hard to acquire prior to marriage will be treated in the future.
Pre-nups are as varied as the people who enter into them. A re-nup can assure that separate property will remain separate, can provide that income from separate property will be separate, can provide how property acquired during the marriage will be treated or even provide that no community estate will be created during the marriage. The agreement is yours to make–to fit the particular desires and needs of the individuals involved.
Before entering into a marriage, it makes sense to talk with a family law specialist who can help your decide if a pre-nup is a good idea for your situation and, if it is, what that agreement should address.
Contact a Experienced Attorney for help!