A premarital agreement (commonly called a “prenup”) is a written contract signed by two people before they marry that sets out how property and debt will be characterized and, often, how they’ll be divided if the marriage ends in divorce or death. Texas law does not require anyone to sign one – most marriages proceed without one, and Texas’ default community property rules simply apply instead. Whether you need one is a personal and financial decision, not a legal requirement, and it depends heavily on your individual circumstances.
A prenup is commonly recommended in certain situations: when one or both spouses bring significant premarital assets or debt into the marriage, when one spouse owns or has an interest in a business, when either spouse has children from a prior relationship, when a spouse expects to receive an inheritance or has family wealth to protect, or when there’s a substantial disparity in income or assets between the two spouses. It’s also useful for couples who simply want more certainty and less potential for future disputes over what belongs to whom, rather than relying on a court to sort it out later.
Even for those who do not have significant assets, a prenup can be helpful to have the spouses discuss important financial matters before marriage. These discussions can help strengthen a marriage before it begins, promoting healthy communication and avoiding financial issues after the marriage. A premarital agreement sets expectations, goals, plans, and procedures.
There are limits to what a premarital agreement can address. It can generally define which property is separate versus community, set terms for how certain assets or debts will be handled, and address spousal maintenance. What it cannot do is predetermine child support or custody terms for children of the marriage; Texas courts decide those issues based on the child’s best interest at the time of a divorce, regardless of what a premarital agreement says. Also, a prenup can address many issues and provide unique terms that a post-nup (a marital agreement signed after marriage) cannot do. There are many more options available in a prenup.
To be enforceable, a Texas premarital agreement generally must be in writing and signed voluntarily by both parties, and courts scrutinize whether each spouse had a fair opportunity to review it and adequate financial disclosure (or a valid waiver of disclosure) before signing. Timing can also matter – an agreement presented and signed only days before the wedding may later be challenged on the basis that it wasn’t entered voluntarily, so most attorneys recommend starting the process well in advance.
Ultimately, whether you need a prenup depends on your specific assets, family situation, and goals going into the marriage. An attorney can walk you through what a premarital agreement would and wouldn’t change for your circumstances before you decide.
If you have questions about divorce, custody, or another family law matter or are ready to move forward with your matter in Dallas County or Tarrant County, contact us at (214) 999-0088 to speak with our office confidentially.