Texas is a community property state. Community property refers to property which spouses acquire during the period of their marriage. You need to protect your property in case you and your spouse divorce. Texas law does not require a 50-50 division of property; rather, the courts approach the division of your property according to what the court considers to be “just and right.” The purpose of a premarital or prenuptial agreement is to prevent the creation of community property so that the court does not take away what belongs to you. The prenuptial agreement permits parties to enter into a contract in which they determine which property remains separate and which property becomes community. A court cannot give your separate property to your spouse. You can use a premarital agreement to address any property issue that might arise during divorce except for child support.
The Uniform Premarital Act (Texas Family Code Chapter 4) mandates that prenuptial agreement be written. Each party must sign the agreement, and the parties can enforce the contract without consideration. The agreements becomes effective upon marriage, and the parties have the right to amend the agreement at any time.
Premarital agreements are not enforceable if:
- The agreement was not signed voluntarily;
- The agreement was unconscionable at the time of execution;
- Prior to signing the agreement, a 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; and did not have our could not have had adequate knowledge of the property or financial obligations of the other party.
Spouses may separate their community property after marriage. The agreement is called a partition and exchange agreement or post-nuptial agreement. The agreement can separate current community property or property which the parties may acquire. The parties must sign the agreement voluntarily, and the agreement must not be unconscionable. As with a prenuptial agreement, the agreement parties must provide reasonable and fair disclosure of the properties or voluntarily waive, in writing, the right to disclosure. The waiving party must not have had adequate knowledge of the property or the financial obligations of the other party. Pre-existing creditors are not subject to these agreements. You can also convert separate property to community property.