What Can and Can’t Be Included in a Prenuptial Agreement?
Published on Jun 18, 2018 | in marriage,prenuptial agreements
Prenuptial agreements have gained popularity over the last several years. They are no longer only reserved for celebrities or high-income couples; many people have discovered the benefits of signing prenuptial agreements. These contracts can help make a future separation or divorce in Texas proceed smoothly. They can also protect separate property, provide financial stability, and decide the control of a property or business. If you’re considering a prenuptial agreement in Texas, Austin prenuptial attorney Abraham Kant can help. Here’s what your contract can and cannot include in Texas:
It Can Protect a Family Business
If someone is marrying into a family business, a prenuptial agreement could legally protect that business and keep it in the family in the event of a divorce. The business must be well-established within the family unit, however, for one to specify it in a prenup. Prenuptial agreements can also protect other family assets, including heirlooms and future inheritances, that the birth family will receive.
It Can Protect from a Spouse’s Debts
In most states, once two people marry, their debts and assets combine into “marital property.” Any debts one spouse gains throughout the duration of the marriage will automatically become the other spouse’s debts as well – unless a prenup agreement specifies otherwise. It is legal for one spouse to avoid absorbing the debts of the other spouse using a prenuptial agreement that limits debt liability. That way, creditors cannot go after the protected spouse’s property if the other spouse is the debtor.
It Can Protect the Benefits of Children of Previous Relationships
Marriages involving children from previous spouses might benefit from prenuptial agreements that protect those children’s rights. A prenup can ensure that children from other relationships still inherit a portion of the deceased person’s property upon death. Think of it as a way to avoid a Cinderella situation, in which the stepmother and her children inherited everything; a prenuptial agreement could have prevented this from happening.
It Can Protect a Spouse’s Estate Plan
Prenuptial agreements and estate plans can work together to protect someone’s estate, assets, and inheritance in the event of death. If you have already created estate planning documents such as a will and living trust, you can use a prenup to reinforce the terms of your plan. A prenuptial agreement can make sure that the courts carry out your wishes relating to your spouse, children, business, and property after death.
It Cannot Waive a Future Spouse’s Benefits
Prenuptial agreements do not have the power to take away a future spouse’s benefits under a plan such as 401(k) or private pension. It can, however, waive one’s rights as a beneficiary and to part of the plan’s benefits upon divorce. To uphold this type of provision in a prenuptial agreement, the spouses will have to reaffirm this term after marrying.
It Cannot Require a Violation of the Law or Public Policy
A prenuptial agreement cannot include a provision forcing someone to break the law or go against public policy in a way that could result in criminal penalties. In other words, one spouse cannot require another to agree to break the law “or else.”
It Cannot Enforce Rules of a Personal Matter
The Texas courts will not uphold a prenuptial agreement that aims to force one spouse into certain personal decisions or habits. For example, a prenup agreement cannot stipulate that one spouse must always keep the house clean or else lose his/her rights to marital property. Instead, a prenuptial agreement should address financial issues, such as businesses, retirement accounts, income, joint bank account management, investments, credit cards, savings, and property distribution upon death.
It Cannot Decide Child Custody Matters
Again, the courts will not uphold any prenup provisions that involve who will get custody and parental rights over children within or outside of the marriage. Prenuptial agreements will not have any say in custody battles after a divorce. Instead, the courts will determine custody based on what is in the child’s best interests, if the couple cannot agree on a plan themselves.
Work with an experienced family law attorney in Austin to draft and submit your prenuptial agreement in Texas to make sure it complies with all necessary laws and requirements.