HOUSTON DIVORCE & FAMILY LAW ATTORNEYS
Houston Texas Prenuptial and Post-Marital Agreements
Dedicated Houston Family Law Attorneys with Conviction, Compassion, & Loyalty
It is not uncommon that some marriages dissolve because of disputes over identification of separate verses community properties. It is also common that one type of property may transmute to a different type of property in the course of the marriage. As the result, Texas law allows for agreements between spouses or potential spouses that characterize or re-characterize the nature of property, the modification or elimination of spousal maintenance and the choice of law governing the agreement to name a few. Perhaps the main focus of these types of agreements is defining the nature of property. The Houston Prenuptial Agreement Attorneys and the Southwest Houston Postnuptial Agreement Lawyers at the Law Offices of Steven Tuan Pham can assist you in identifying community properties and separate properties, as well as reviewing and drafting pre-marital and post-marital agreements. By characterizing the type and nature of properties, it may prevent or save a marriage from a disastrous divorce. Please contact our Houston Pre-marital and Post-marital Attorneys at 832-484-9015 to set up a consultation
Community Property In Texas
Texas is a community property state where all property acquired during the marriage is considered, absent sufficient evidence otherwise, to be community property in which the spouses have an equal interest, any property not acquired during the marriage is separate property owned by the acquiring spouse. Furthermore, any income from separate property acquired during the marriage is also considered community property. Property acquired during the marriage that is not community property can be an inheritance or gift. If potential spouses choose to agree to keep certain property from becoming community property during the marriage, they can enter into a pre-marital agreement whereby the property in issue is listed specifically and its character is defined in the document.
Texas Pre-Marital Agreements
Pre-marital (prenuptial) agreements are enforceable in Texas if they are prepared correctly and if there is a complete disclosure of all assets. The agreements must be signed by both parties; and, it is advisable to have both parties represented by individual counsel prior to signing and such reflected in the documents. There are however, certain circumstances where a pre-marital agreement can be voided. For instance, if assets are not fully listed in the document, the agreement may not be enforced. In addition, if a party signs the agreement under duress, the agreement may not be enforced. These agreements are enforceable without consideration. That is, the parties need not give something of value to the other in order to have a valid and binding agreement as with other contracts.
Texas Post-Marital Agreements
An agreement that converts the character of property from either separate to community or vice versa during the marriage is called a postnuptial or post-marital agreement. People enter into postnuptial agreements for a variety of reasons, some of which are to specify the division of property in the event of death or to ensure one’s property is passed to bloodline descendants. It is common for spouses to convert separate property to community property so that, in the event of death, the surviving spouse has a community interest in the deceased property that would have otherwise gone to someone else, especially in the event of intestacy (dying without a will).
Both prenuptial and postnuptial agreements have the same enforceability requirements. These agreements will not be enforced if: against whom enforcement is requested proves that s/he “did not sign the agreement voluntarily; or the agreement was unconscionable when it was signed and, before signing the agreement, that 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 beyond the disclosure provided; and did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.”
Rights of Creditors
Regarding rights of creditors with respect to pre- and postnuptial agreements, parties cannot redefine creditors’ rights by these agreements. However, these agreements can be acknowledged and filed in the county in which real property exists that is affected by the agreement in order to give constructive notice to a good faith purchaser of value or a creditor without actual notice.
Transmutation of Property
To change community property to separate property, the agreement to do so must be in writing and signed by the parties. Enforceability is based on the same criteria mentioned above. To change separate property to community property, the agreement must also be in writing and signed by both parties and specifically name the property in issue. Merely transferring the property to the name of the other party is insufficient to convert its character. There is special language that, when added to the agreement, provides a rebuttable presumption that a fair and reasonable disclosure of the legal effect of converting property to community property has been made. Again, the rights of creditors are not changed simply because the character of separate property has been changed to community property.
Before you enter into a partition or exchange agreement, it is advisable to have a lawyer review the document and explain the legal effect of it so you will know what exactly you are either giving up or getting. Contact the Houston Prenuptial and Postnuptial Agreement Attorneys at the Law Offices of Steven Tuan Pham to discuss how a pre-marital agreement or a post marital agreement will affect you. You may schedule an appointment by calling 832-484-9015 or simply fill out the online contact form.
DISCLAIMER
Texas Family Law and Divorce have numerous complicated issues, especially when it comes to spousal support and alimony and the division of community properties such as real property and retirement accounts that cannot be easily "divided." In addition, matters only complicate more when there are minor children involved. This is exceptionally true when the parties do not agree with child custody, child support issues, and visitation rights. When facing these difficult issues, you need to consult with an experienced Houston Divorce Attorney or an experienced The Woodlands Divorce Lawyers at the Law Offices of Steven Tuan Pham. Our Houston Divorce Law Firm assists clients in Harris County, Montgomery County, Fort Bend County, Brazoria County, Galveston County, and Liberty County to resolve their family matters. We also assissted a number of clients in resolving their divorce out of court through unconcested divorce and collaborative law. In addition, our Houston IVF Attorneys are also experienced in the invitro fertilization process and doctors' forms and waivers. We can also draft gestational surrogacy agreements and contracts between natural parents and the surrogate and assist you in proving these documents in court. Please contact our Houston Family Law Attorneys and our Houston Divorce Lawyers for more information and see how we can help. You can reach our family law attorneys at 832-484-9015 or complete our Online Contact Form.