A Texas postnuptial agreement is a legal contract married spouses use to determine asset distribution upon their divorce or one spouse’s death. State law commonly refers to these documents as “post-marital property agreements.” With this agreement in place, a couple can decide where their property will go without defaulting to the state’s property laws.
Postnups differ from prenups because couples sign them after they marry rather than before, meaning they’re subject to different scrutiny under state law.
Legal Considerations
Title 1 of the Texas Family Code covers the marriage relationship. Chapter 4 covers marital property agreements, including postnups, while Chapter 3 details marital property rights and liabilities.
- Signing Requirements: The agreement must be signed by both parties (§ 4.104 FAM).
- Dividing Property: Community property (§ 3.003 FAM).
Case law also guides some elements of postnups. For example, Marsh v. Marsh, 949 S.W.2d 734 (1997) states that postnups contain a fiduciary duty that prenups don’t have.
Understanding Postnuptial Agreements in Texas
Effect of Marital Property Agreements
§ 3.410 FAM states that a postnup executed before, on, or after September 1, 2009, is effective to partition, assign, release, or waive a claim for economic reimbursement, contribution, or both. The agreement must satisfy the requirements in Chapter 4 of the Texas Family Code. The agreement is effective under the law as it existed before September 1, 2009, unless the agreement states otherwise.
§ 4.102 FAM – Partition or Exchange of Community Property
- The spouses can divide or exchange between themselves part of all of their community property (whether it already exists or will be acquired) as they desire.
- A property interest transferred to a spouse by an exchange or partition agreement becomes the spouse’s separate property.
- The exchange or partition of property may also provide that future income and earnings from the transferred property will be the owning spouse’s separate property.
§ 4.103 FAM – Agreement Between Spouses Concerning Income or Property From Separate Property
- The spouses may concur that the income arising from the separate property that one of them owns or may acquire thereafter will be the owner’s separate property.
§ 4.104 FAM – Formalities
- An exchange or partition agreement under § 4.102 FAM or an agreement under § 4.103 must be in writing and have both parties’ signatures.
- Either agreement is enforceable without consideration.
§ 4.105 FAM – Enforcement
- An exchange or partition agreement is not enforceable if the requesting party proves that:
- They didn’t sign the agreement voluntarily; or
- The agreement was unconscionable at the time of signing, and before the agreement’s execution, that party:
- Didn’t receive a fair and reasonable disclosure of the other party’s property and financial obligations;
- Didn’t voluntarily and expressly waive, in writing, any right to the disclosure of the other party’s property and financial obligations; and
- Didn’t have, or reasonably couldn’t have had, adequate knowledge of the other party’s property and financial obligations.
- The court will decide, as a matter of law, on any issues of unconscionability of an exchange or partition agreement.
- The defenses and remedies in this section are the exclusive defenses and remedies, including common law defenses and remedies.
§ 4.106 FAM – Rights of Creditors and Recordation Under Partition or Exchange Agreement
- A provision of an exchange or partition agreement made under this subchapter is null with respect to a preexisting creditor’s rights whose rights are intended to be defrauded by it.
- An exchange or partition agreement made under this subchapter may be recorded in the deed records of the county where the real property is located and in the county in which a party resides. This agreement will only be recognized and protect you against someone who wants to purchase the property or a creditor looking to claim it if it is acknowledged and officially recorded in the public records of the county where the property resides.
