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What’s Up With Postnups?

Prenuptial agreements are fairly common these days, with many couples choosing to address practical issues of rights and responsibilities in writing before they are married. But plenty of things change during the course of a marriage. Unless a pretty talented psychic wrote the prenup, chances are it doesn’t cover what happens after the wedding.

That’s why postnuptial agreements can be an important tool for married couples. A written contract between spouses while they are married can settle issues that might become points of contention, especially in terms of financial assets. In my family law practice, I’ve seen a lot of relationships destroyed over money concerns that might have been headed off at the pass by a postnup.

As with most legal documents, the best time to make a postnuptial agreement is before you “need” it. Many couples find the very process of preparing a postnup to be an almost therapeutic experience, since they have an opportunity to examine their property and assets, debt, spending habits, and financial future.

In Texas, generally, all assets accumulated during a marriage are considered by default to be community property —divided in a just and right matter when the marriage ends. A postnup gives couples a chance to decide for themselves what is the fairest division of property. Provided that the court finds that both parties signed the postnup voluntarily, the agreement is likely to be accepted.

A postnup also can address situations specific to the marriage:

  • To protect one partner from heavy debt accumulated by the other partner during the marriage
  • To ensure that a family business stays in the family
  • To protect property, obligations, and children from a previous marriage
  • To define goals and priorities for large expenditures like a child’s education, a vacation home, retirement, etc.
  • To specify which assets are owned jointly and which are owned individually
  • To define parameters of the financial effects of a job change, relocation, decision to have children, etc.
  • To ensure that income from property owned separately before marriage retains its classification as individual property rather than becoming community property, as it would by default without a postnuptial partition agreement.

Coming up with a written plan to analyze your joint financial issues doesn’t mean that you don’t trust each other. On the contrary, it indicates that you trust each other enough to openly discuss your priorities for the present and your hopes and fears for the future. Your family law attorney can help facilitate a positive, constructive dialog that results in a solid, win/win postnuptial contract.