What Is a Texas Postnuptial Agreement?
A Texas postnuptial agreement or a marital property agreement governs the distribution of property when a married couple divorces. Couples create it after they are already married. If you want to protect your assets before marriage, you need a prenuptial agreement. This document goes into effect once the marriage is final.
In the absence of a postnup, TX Fam Code § 3.003 implements community property laws. Under these rules, any property possessed by either spouse at the time of a divorce is assumed to belong to both of you. TX Fam Code § 4.102 allows spouses to transfer community property to the other spouse during marriage. Once this property is transferred, it becomes the separate property of the receiving spouse.
A postnup in Texas executed before, on, or after September 1, 2009, can divide assets between spouses (TX Fam Code § 3.410). This document can also determine issues related to spousal support. Still, it may govern the making of a will or trust that will carry out the terms of the agreement if one spouse dies. Unless otherwise noted, the agreement is effective under the law as it existed before September 1, 2009.
How to Write a Postnuptial Agreement in Texas
As you put together your Texas postnuptial agreement, make sure it includes these essential elements. Legal Templates’ postnuptial agreement template can guide you through the process so you don’t miss any steps.
1. Name the Parties
List both parties included in the marriage. Each must be considered competent and have the capacity of an adult under TX Fam Code § 1.104.
2. Reveal Financial Information
To protect assets with a postnuptial agreement in Texas, both parties must list them. This can include disclosing bank accounts, investments, and real property.
3. Divide Property Ownership
Clearly describe what property each spouse will walk away with after the marriage. Texas family law includes a rule known as “inception of title” (TX Fam Code § 3.404), which determines whether to classify property as community or separate. If one spouse acquired the property before marriage, it is generally considered separate property. On the other hand, if the property was acquired during the marriage, it is assumed to be community property unless one spouse can prove they own it.
4. Assign Business Ownership
Under TX Fam Code § 4.103, you and your spouse can assign the income or property from a separate property or business to one of you instead of it being considered community property throughout the marriage.
5. Settle Debts
Just like you and your spouse need to lay out who will receive what assets in the event of a divorce, you should determine who will be responsible for paying specific debts. While this is particularly important if one spouse brings significant debt into the marriage, it can also prove useful in settling matters such as who will assume responsibility for paying off loans for a house, vehicle, or other substantial debts.
6. Decide on Housing Arrangements
State which spouse will take possession of the marital home and which spouse will need to leave and find a new residence.
7. Arrange Pet Custody
While a postnuptial agreement cannot govern child custody or child support, it can determine which spouse will take custody of your pets. Arranging pet custody can help you protect your ownership of them in the event of a divorce.
8. Provide Spousal Support
Texas laws govern spousal support without a postnuptial agreement. That may include, under TX Fam Code § 8.055, up to the lesser of $5,000 per month or 20% of the paying spouse’s monthly gross income. However, a postnup can specify the terms of spousal support or even waive a lower-earning spouse’s right to payments.
9. Finalize and Sign
Both spouses must sign and agree to the postnuptial agreement.
Sample Texas Postnuptial Agreement
Take a look at this sample Texas postnuptial agreement, then create your own using our free template. Download it in PDF or Word format.
Legal Requirements and Considerations for Texas Postnups
Texas postnups follow Chapter 4 of the Texas Family Code. They are treated similarly to prenuptial agreements, including the legal protections they provide for both spouses. A postnuptial agreement can override Texas community property laws.
Signing Requirements
Under TX Fam Code § 4.104, both parties must sign the postnuptial agreement. While notarization is not required, it can add an extra layer of legal protection.
Legal Representation
Under Texas law, working with an attorney is not required to create a postnuptial agreement. However, a lawyer can ensure compliance and fairness and provide evidence that both parties entered into the agreement voluntarily. The courts may examine a postnup more closely than a prenup due to the increased obligation of those spouses to one another.
Case law may also guide some key elements of postnups. For example, Marsh v. Marsh, 949 S.W.2d 734 (1997) provides a clear look at the responsibilities of each spouse when creating a postnup. While a fiduciary relationship, or requirement to act in the best interests of the other party, does not govern prenuptial agreements, it does exist in a postnup, as the terms of this case lay out.
Excluded Terms
Postnuptial agreements cannot include information about child support, custody, or visitation terms. The court generally decides those elements based on the best interests of the child at the time of a divorce or separation. You cannot create a Texas prenup to defraud creditors (TX Fam Code § 4.106).
Provided Rights
In some cases, postnuptial agreements can also establish inheritance rights. TX Est Code § 201.002 governs the terms of dividing an estate if someone dies without a will. However, a postnup can outline the terms, including assigning inheritance rights to the spouse or indicating that the spouse waives them.
