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What Is a Post-Marital Agreement in Texas?

Sophia Merton
January 12, 2024

You’re probably familiar with the idea of a prenuptial agreement, but what is a post-marital agreement in Texas? Is this something that you and your spouse should consider, or is it not necessary in your situation?

In short, a post-marital agreement is a contract between spouses that is created and signed after the marriage has occurred. This legal document outlines property ownership and division, along with other important issues, in the event of divorce or death.

Not all couples will need a post-marital agreement, but those with significant assets, blended families, and frequent conflicts about finances, to name a few, can certainly benefit from this type of contract.

Let’s take a look at what you need to know about postmarital agreements in Texas to help you determine whether or not it’s something you and your spouse should pursue.

What Is a Post-Marital Agreement?

Also known as a postnuptial agreement or a postnup, a post-marital agreement is a legal document that married couples can create to determine ownership and property division in the case of a divorce or death.

husband and wife meeting with lawyer in texas to draft post marital agreement

You’ve probably heard the term “prenup,” which refers to a contract between a couple that is made prior to their marriage. A post-nup is very similar, except that the parties involved are already husband and wife when the document is created.

Are you wondering how assets and debts are typically split up in a Texas divorce? You can learn more about what to expect in our guide to Community Property Law in Texas.

What Issues Are Included in a Post-Marital Agreement?

A number of issues can be touched upon in a post-marital agreement, including:

man and woman looking over postmarital agreement in texas

It’s worth noting that a postnuptial agreement in Texas cannot make determinations about the following issues:

Both child custody and support are issues that, from the viewpoint of Texas courts, must be decided in a way that prioritizes the best interest of the children involved. This means that neither prenups nor postnups can outline how issues of child custody and support are handled.

What Are the Benefits of a Post-Marital Agreement?

Though a post-marital agreement might not sound like the most romantic endeavor you and your spouse could engage in, the truth is there are a number of benefits to creating this type of document.

Asset Protection

When you create a post-nuptial agreement, it gives both spouses the chance to put in their two cents about how assets and debts will be divided in the case of divorce or death.

  • One of the reasons that a postnup can be actually more useful than a prenup is that couples often have a better sense of their financial situation once they are already hitched.

Furthermore, depending on how long into the marriage the document is created, it’s possible that they will both be more mature and more capable of coming to agreements that suit both of them.

Clarifying Expectations

Finances can be one of the biggest stressors in any relationship.

  • By creating a post-nuptial agreement, couples can help to set expectations about the role each of them is playing financially in the marriage.

Without clear expectations about how you’ll deal with money as a couple, it’s much more likely that you and your spouse will deal with conflict surrounding your finances.

Helps Avoid an Expensive and Lengthy Divorce

Getting a postnuptial agreement doesn’t necessarily mean that you and your spouse are planning on getting divorced. After all, this can also be a useful tool for estate planning and keeping wealth in your family in the long run.

However, postnups can also be very useful in making divorce much more seamless. When you and your spouse have already made decisions about the most important issues on the table long before tensions were high mid-divorce, it can mean you save money on legal costs and tons of time. Essentially, you can pursue an uncontested divorce rather than engaging in a contested divorce.

Business Interest Protection

If either spouse or both spouses together own a business, a postnup can be a very useful document.

small business open sign owned by couple getting postmarital agreement in texas

Not only can this document outline what happens to business assets and interests in the event of divorce, but it also can ensure that you have some control over what happens to your business after your death.

Family Wealth Preservation

If you or your spouse has children from a previous marriage, a post-marital agreement can help make sure that these children’s interests aren’t lost in the shuffle in the case of divorce.

grandparents and grandchildren in texas using postmarital agreement to preserve family wealth

Beyond that, this type of document can serve to protect the interests of your beneficiaries when you and your spouse pass on.

What Are the Drawbacks of a Post-Marital Agreement?

Of course, there are always two sides to every coin. A postmarital agreement might not be necessary or the best idea in every situation. Let’s take a look at some of the reasons you might want to steer clear of creating this type of contract with your spouse.

Underlying Assumption of Divorce

One of the biggest reasons that people are skeptical of creating post-marital agreements is that it seems to imply that divorce is inevitable. After all, why would you go through all the trouble to decide how things will be split up if you’re planning on living happily ever after?

Well, the truth is, there are plenty of reasons.

At the same time, even the thought of signing a postnup could leave some individuals with hurt feelings. For this reason, it’s always a good idea to be thoughtful about how you broach the issue and explain to your spouse why you think it is beneficial for both of you.

Problems With Enforceability

In general, postnuptial agreements are enforceable so long as the contract wasn’t signed under duress or fraudulently. Furthermore, the agreement must not be considered unconscionable by the courts and can’t contain certain terms.

Additionally, some experts state that postnuptial agreements are actually scrutinized much more carefully than prenuptial agreements. The reason for this is that the contract is being created after the marriage has occurred, which potentially creates a scenario where both parties don’t have an equal place on the playing field. For instance, if one party has more assets or earns the lion’s share of the income, it can leave one spouse in an unequal bargaining position.

Trouble Reaching an Agreement

Of course, another potential issue with postmarital agreements has to do with actually reaching an agreement in the first place.

When you’re creating a post-marital agreement, you’re dealing with some of the most important issues in your life. Questions regarding your home, your property, your debts, your business, and so forth are all on the table.

If both individuals aren’t on the same page, an attempt to create a postnuptial agreement could actually create conflict and strife rather than help to avoid it.

Why Might You Want a Postnuptial Agreement in Texas?

Postnuptial agreements aren’t necessarily going to be the right choice for every couple. That being said, here are some of the factors that could potentially make you and your spouse good candidates for this type of document:

  • Spouses with substantial assets
  • Blended families/second marriages
  • Business owners
  • Spouses that experience a sudden windfall
  • Spouses who want to create expectations and rebuild trust after marital conflict
  • Spouses who are facing financial challenges or disagreements and want to create a framework to resolve issues going forward

On the other hand, going to the trouble and expense of hiring a lawyer to create this type of document might not be worth it in the following circumstances:

  • Spouses that don’t have much in the way of property or debts
  • Spouses that have similar earnings and assets
  • Spouses that have a strong foundation of trust and the ability to communicate openly
  • Spouses without any previous marriages or children from other marriages

Are There Any Requirements For Post-Marital Agreements in Texas?

In order for courts in Texas to see your post-marital agreement as valid, the following must be true:

  • The agreement is in writing
  • The agreement is signed by both parties
  • All assets and debts must be disclosed fully by both spouses
  • Both spouses must sign the agreement voluntarily
  • Both spouses must be legally capable of entering the agreement

You will typically want to work with a lawyer when drafting and signing a postnuptial agreement. Doing so will help ensure that you are creating an enforceable document that is considered valid in the state of Texas.

Is a Postnuptial Agreement Right For You?

Only you and your spouse can decide whether a post-marital agreement is the right choice for your family. Postnuptial agreements are contracts between spouses that are created after the marriage has taken place and outline what will happen to your estate in the case of divorce or death.

Though this might not sound like the most romantic endeavor to undertake with your spouse, postnuptial agreements can be a useful financial tool when done correctly.

Are you looking for more information to help you navigate the world of family law in the Lone Star State? If so, check out our Texas Divorce Laws blog for more useful resources!

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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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