Marital Property Agreements
They’re commonly known as prenups or postnups. Now, why would somebody want to prenup? You know, you see on television and in the movies, people want prenups to protect their millions of dollars or all their assets. In Texas, that’s not the case. If you own something prior to marriage, it’s your separate property. It can’t be divided because you own it. So, why would you do a prenup?
What you’re doing is paying a fee now, like insurance. That’s the best analogy I can come up with. You’re paying a fee now to make sure that everybody understands from the get-go that what you have will always be your separate property. That’s what the law says.
So we’re just going to pay for that, list out all the accounts and the assets, so that, God forbid, you get a divorce, neither one of you has to spend thousands, and maybe tens of thousands, of dollars on tracing experts, 20 years later, to try to determine what you owned prior to marriage and prove that it’s your separate property.
So, it’s a smart idea, if you have assets that are of substance, to go ahead and eliminate that potential cost in the future by having a prenup. The other thing you need to know about prenups is this. They’re not forever. After five years, six years, 10 years, you can revoke them, say, “I don’t need this anymore. We’re great”.
Now, why would anybody have a postnup if they’ve been married? There’s a big gap in the Texas Family Code. You either file for divorce or you get dumped, and, while you’re married, there’s a legal fix in that you’re the same person which means both of you own all the assets. The problem with that is, most of the time, all those assets are controlled by one party or the other. So you end up with one party controlling all the bank accounts and brokerage accounts and giving the other person an allowance, and that sucks.
But you don’t want a divorce and that situation needs to be remedied. So, you can call us, and we’ll draft a post-nuptial agreement which basically divides the community estate now, puts the accounts in one party’s name, and these are accounts in your name, and it’s all divided, thereby avoiding a divorce and costly litigation. If that doesn’t work and your relationship doesn’t improve, you can file for divorce, but there’s no property to fight about because you’ve already divided it. It’s a very inexpensive way to avoid a potentially extremely expensive process. That’s why people do it.