Texas Divorce Laws

How to Get a Prenup in Texas

By:
Sophia Merton
Updated
April 22, 2022

Drafting a prenuptial agreement before you get married might not seem like a very romantic thing to do, but it can be a smart financial move for many engaged couples. Ranging from simple documents to incredibly complex agreements, prenups can help you and your partner outline how finances will be dealt with in your marriage. If you’re about to get hitched in the Lone Star State, you might be wondering how to get a prenup in Texas.

Premarital agreements, contrary to popular belief, don’t necessarily mean that you and your partner believe your marriage is doomed to fail. In fact, they can actually be a tool that strengthens your relationship because you have already agreed on important financial decisions ahead of time.

For that reason, we put together this guide filled with what you should know about getting a prenup in Texas. Let’s dive in and take a look at all the most important details.

Should You Get a Prenup in Texas?

couple getting a prenup in texas

Depending on you and your partner's financial situation, getting a prenup before marriage can make a lot of sense.

Getting a prenup might not be for everyone, but in certain circumstances, it can make a lot of sense. It’s worth noting that Texas is one of nine states that are community property states, meaning that both spouses equally own any property that is acquired during the marriage. For this reason alone, you might consider getting a prenup if you’re tying the knot in Texas.

Let’s look at some of the factors that might mean you should get a prenup:

  • One or both of you has a lot of debt you’re bringing into the marriage
  • One of you is quite a bit wealthier (or poorer) than the other
  • One or both of you are interested in securing your estates
  • It is the second marriage for one or both of you
  • One or both of you have children from another marriage
  • One or both of you are bringing property into the marriage

There are, of course, a lot of other reasons you might want to get a prenup in Texas. However, this list is a helpful starting point for understanding some of the common reasons that couples choose to write out an agreement regarding finances before they get married.

(Wondering how much a prenup costs in Texas? Check out this article.)

How to Get a Prenup in Texas

Depending on the assets and debts you and your partner are bringing into a marriage, prenups can range from fairly simple to incredibly complex. Let’s look at how to get a prenup in Texas.

Determine If You Need a Prenup

The first step to getting a prenup in Texas is determining whether or not it is something that would benefit you and your spouse-to-be. A prenuptial agreement is a legal contract that describes the assets and debts that each party is bringing into the marriage and how assets and debts will be dealt with in the case of a divorce or death.

(Curious to know how long it takes to get divorced in Texas? Take a look at this article.)

Talk to Your Soon-To-Be Spouse About Your Shared Plans and Goals

An important part of the process of creating a prenup in Texas is talking with your partner about your finances. You will want to talk honestly about each of your financial situations and whether you plan to combine or keep separate your assets after marriage.

This can be a really useful step to take for any soon-to-be-married couple even if you don’t end up creating a prenup. When you begin the marriage with an open conversation about finances, it can help build a strong foundation of trust between the two of you.

You’ll want to touch on any and all issues that could impact your marriage in the future. This includes:

  • Current assets and debts
  • Shared expenses
  • Credit scores
  • What are your financial goals are
  • Whether you will maintain separate bank accounts

It’s best to have this conversation as early as possible. This will give you both plenty of time to reach an understanding without the wedding day looming nearby.

It is totally normal for people to feel weird talking about money, but it’s a good idea to keep the conversations professional. Rather than framing the discussion about what will happen if you get divorced, it can be helpful to look at it as a part of financial planning for married life.

Take a Look at Your Options

You can choose to either hire a lawyer to help you through the process of creating a prenuptial agreement or you can craft one on your own. If you go the DIY route, you will want to be very certain that your prenup will be considered valid in a Texas court. Otherwise, all of your hard work could be for naught.

If you are hoping to save money when you are creating a prenup, there are templates you can find online to help you through the process. In general, though, it is a good idea for each spouse to have their own attorney when creating a prenup. If one or both of you has an estate that is fairly complex, it is probably a good idea to involve a lawyer rather than trying to do it on your own.

Whether or not you have an attorney draft the prenup, it is generally advised that you have an attorney review the prenup. This can help you know for sure that the prenup has been drafted properly and will increase the likelihood that it will be seen as valid in a Texas court.

Make a List of Assets, Debts, and More

assets being brought into a texas marriage

It's important to clearly list each of your assets, property, and debts when you are drafting a prenup.

The next thing you will want to do is to make a list of each person’s assets, income, debts, and anticipated future gains. It’s important that all relevant financial information is fully and accurately disclosed at this point. This is important, of course, for the sake of trust in the marriage, but also because failing to disclose all relevant information could end up leaving the document invalidated if it ever ended up in court.

Understand What Makes a Prenup Valid in Texas

Texas is one of the states in the U.S. that has adopted the Uniform Premarital Agreement Act. Created in 1983, this Act was created by the National Conference of Commissioners and outlines all of the elements that they believe should be a part of a prenup that is legally enforceable.

There are three requirements that a prenuptial agreement must meet in the state of Texas in order to be considered valid. These are:

  • The prenuptial agreement must be in writing
  • Both parties must have executed the agreement with a definite and upcoming marriage in mind
  • The prenuptial agreement doesn’t have to be supported by “consideration,” meaning that one party doesn’t have to give something of value to the other as a gesture of support for the contract

On the other hand, another set of factors will mean that a prenup is unenforceable in the state of Texas. These are:

  • One of the parties didn’t sign the prenup voluntarily
  • The agreement is considered to be “unconscionable”

For an agreement to be unconscionable it means that it is egregiously unfair. If any of the following are true, the contract would be considered unconscionable:

  • One of the spouses didn’t fairly and reasonably disclose all of their property ownership and financial obligations
  • One of the spouses didn’t expressly and voluntarily waive their right to such a disclosure in writing
  • One of the spouses didn’t have adequate knowledge of the others financial obligations and property interests (or couldn’t have reasonably had knowledge of this information)

If you are going through all the trouble of creating a prenuptial agreement, it’s important to make sure that it will be enforced in the state of Texas. For this reason, it’s a good idea to have a lawyer look over your prenup if you working with one during the drafting process.

Understand What Cannot Be Included in a Texas Prenuptial Agreement

child in texas family

Prenups can cover a lot of topics, but neither child support nor child custody can be determined in a premarital agreement.

There are certain things that cannot be determined in a prenuptial agreement in Texas. For example, you can’t assign a cap to child support payments or rule out child support payments. Child support in Texas is determined by the courts, and a prenup cannot overrule this process.

Acts that would be illegal in Texas also can’t be included in a premarital agreement. A prenup can be invalidated if it is seen to be an attempt to defraud creditors through transferring asset ownership from one partner to another and they can’t condone acts such as being married to more than one person.

Draft the Agreement

As mentioned earlier, there are templates available online if you are trying to reduce your lawyer fees in the process. However, if your finances are at all complicated, it is probably best to involve an attorney in the drafting process.

In your prenup, you will want to provide a complete description of each of your assets. This includes bank account names and numbers, locations and addresses of properties, explicit descriptions of valuable belongings, and the make, model, and year of any vehicles that each of you owns. You will also enter any debts that either of you is responsible for.

In your prenup, you will want to define which property or assets will be kept separate. This means that the property or asset will remain in the possession of the original owner if the marriage were to end. Other considerations include:

  • What will happen if an asset increases in value
  • Making sure that you keep separate property in the name of the original owner during the entire duration of the marriage
  • Ensuring that you are as specific as possible when you are describing each asset

You will also want to make clear which property will be shared between you. You will also want to describe how you plan to deal with assets that are acquired while you are married and how you plan to divide them if the marriage were to end.

Next, you will want to explain how the debts that you currently have will be paid. This might state that marital property will pay for certain debts or that an individual is solely responsible for paying back their own debt.

You can also define any financial support that will be paid to a spouse in the event of a divorce. While a Texas prenup cannot limit the amount of child support that one parent pays to the other if they get divorced nor determine child custody, you can memorialize a binding agreement about alimony.

You can choose to waive alimony, set up a level of support, agree to cost of living adjustments, or otherwise deal with any matters that impact alimony.

Your prenup should also outline what will happen to the marital residence in the case of divorce. While this can be a difficult issue to face before you have even gotten married, it can be helpful in the long run to decide how to deal with the marital property ahead of time.

This is also an opportunity to define how you and your partner will handle finances during the marriage. This might include who will handle share finances, how you will make large purchases, whether you will have shared or separate bank accounts, or who will pay household bills. You can also outline how you will pay taxes, how to deal with existing tax debt, whether you will file jointly or separately, and more.

A prenup is also a chance to decide ahead of time how you will allocate property if you were to get divorced.

Make It Official

You will need to finalize your prenup before you get married in order for it to be valid. As soon as you are legally married, the agreement becomes effective. Among other things, prenups need to be written and signed in order to be valid in Texas. Again, it’s a good idea to have a lawyer check everything over before the two of you are legally married.

What Can Prenuptial Agreements Cover in Texas?

Some or all of the following issues can be included in Texas prenups:

  • The rights and obligations that each of you has in terms of property
  • How personal or real property will be allocated if one of you passes away, if you separate, or if you get divorced
  • Alimony rights
  • The rights that each of you have when it comes to managing or controlling property
  • The making of arrangements to facilitate the agreements in the prenup (a will or a trust, for example)
  • What will happen to the rights to the death benefit from life insurance policies
  • Other matters that aren’t in violation of criminal laws or public policy in Texas

Child custody and child support cannot be included in a Texas prenup. The right to child support is considered the right of the child in Texas rather than belonging to the parent.

Can You Get a Prenup After Marriage?

texas couple getting married with a prenup

While you can't get a prenup after you've already gotten married, you can draft and sign a similar contract known as a postnuptial agreement.

 

No, you can’t get a prenup once you are already married. However, it is possible to sign what is known as a postnuptial agreement. In most cases, these contracts can achieve the same goals as a prenuptial agreement can. In this type of agreement, you can outline how to own and manage property during the marriage and what will happen to your property in the case of death or divorce.

What Happens If You Don’t Get a Prenup in Texas?

If you don’t have a prenup in Texas, your property will be divided according to Texas law. This means that your separate property will continue to be your separate property (assuming that you can prove that you received it by gift, descent, or devise or that it belonged to you before the marriage.)

Most forms of income and other property that was acquired during the marriage, though, will become community property. This is considered jointly owned and will be divided in a “just and right” way. This doesn’t necessarily mean, however, that it will be divided 50/50.

Understanding Texas Law Can Help You Make the Decision That’s Best For You

Getting a prenup can set you and your partner up for financial success in your marriage. Rather than thinking of it as just an agreement about what will happen in the case of divorce, it’s best to think of it as a family planning document. After all, it can also outline important financial decisions that you and your spouse had the forethought to discuss and come to an agreement about before you tied the knot.

If you’re looking for more articles about divorce, prenups, marriage, and issues regarding family law in Texas, you’ve come to the right place. Be sure to stop by TexasDivorceLaws.org for more valuable resources.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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