18 Sep Prenuptial and Postnuptial Agreements
Texas law requires that division of property must be equitable under the circumstances. There are many things the court considers in determining what is “equitable”, including fault in the breakup of the marriage, the difference in earning potential between the spouses, which spouse has custody of the children, and more. An equitable split does not mean that the division of property will be 50/50, and a court is never allowed to award one spouse’s separate property to the other spouse.
A couple can name specific property as “community” or “separate” themselves in two ways. First, before marrying, they can execute a prenuptial agreement, or “prenup”. If already married, the couple can execute a postnuptial agreement. In either case, there is no formula that must be followed in dividing or characterizing the property. An engaged couple can designate everything that each acquires during the marriage as his or her separate property so that no community property is created. They could choose to state that, in the case of a divorce, each party receives 50% of the community property, since Texas law does not provide for a specific division. A married couple may choose to divide their community property into two separate estates. Again, there is no formula for a prenuptial or postnuptial agreement. The options and possibilities are as endless as the two parties’ wishes and desires. What is required is that the agreement be voluntary, generally fair, and that each party:
- Be given a fair and reasonable disclosure of the other’s property; or
- Must sign a waiver of such disclosure; or
- Must have had adequate knowledge of the other party’s property and/or financial obligations.
We have learned this week that in Texas, “community property” does not mean that each spouse in a divorce “gets half”. A fair division of marital assets – and debts – is a complicated matter. If you are going through a divorce, this is one area where you don’t want to make a mistake. Take the time to consult with a qualified Texas Family Law attorney. You’ll be glad you did!