Michalk, Beatty & Alcozer, L.P.


Can I allocate my property with my spouse after we are married?

Many people have touted the benefits of signing a prenuptial agreement while also highlighting the difficulties of signing such an important document at an emotionally charged time. Many times couples take it as a sign that one spouse is already looking for a way out of the marriage, rather than recognizing it as a way to avoid a drawn out legal dispute in case the marriage ends. This may be why there has been a recent rise in postnuptial agreements-agreements signed by spouses after they get married.

The Texas Family Code has brought these agreements, known as partition agreements, under its ambit. Firstly, it allows spouses to exchange or partition between themselves either a part of or all of their community property, whether it is existing at the time or not. Property exchanged or partitioned in this manner then becomes that spouse's separate property and the agreement can also specify that future earnings of that property will also remain separate property.

In order to be enforceable however, certain formalities must be met. The most important of course being that the agreement must be signed by both parties and in writing. This means that if either party can show they did not enter into the agreement voluntarily, it will not be enforced. In addition to this, if one party did not fairly and reasonably provide disclosure about their property or financial obligations or did not expressly waive in writing the right to disclose such information or the party could not have reasonably known about this information, before the agreement was signed, it will not be enforceable. The agreement does not need consideration to be valid.

Many Texas couples may be of the misguided opinion that asking for a postnuptial or prenuptial agreement is a sign of greediness but this is not the case-it allows couples to protect their inheritance, their children from previous marriages and their family businesses. An experienced family law lawyer may be able to help couples draft enforceable agreements to protect their future.

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