A pre-marital agreement, “pre-nup”, is a contract between two parties, made in anticipation of marriage, which defines how each party’s property will be treated in the event of divorce or death of a spouse. It is a document, recognized in Texas, which allows the parties to choose to treat certain property as “separate” or “community” property. Under Texas law, all property owned by married persons is presumed to be “community” property upon the filing of divorce or upon the death of one spouse.
“Community” property is presumed to belong equally to both spouses, unless one of the spouses can “trace” the property to an origin making it that spouse’s “separate” property. For example, property acquired by inheritance, gift, personal injury recovery, or owned prior to the marriage, may be deemed “separate” property, if it can be properly traced.
In the absence of a pre-marital agreement, which specifically defines each spouse’s separate property, by agreement with full disclosure, a spouse may find him or herself in litigation, attempting to prove to a court that certain assets are “traceable” to separate property. Obviously this can be time-consuming and costly.
With a pre-marital agreement, both parties know where they stand in the event of death or divorce, and litigation can be avoided or minimized. Spouses can also enter into a post-marital agreement if they are already married, which can accomplish the same things.
A pre- or post-marital agreement can also set out the parties’ position on spousal maintenance (alimony), but it cannot be used to limit child support obligations.
For more information about pre- or post-marital agreements, visit www.mmconnollylaw.com.