Postnuptial Agreements


Austin divorce attorneys are sometimes called upon to represent clients who wish to create a post-nuptial agreement. Post-nuptial agreements are similar to prenuptial agreements except that they are created after a couple is married.

Under Texas law, a couple may enter into a post-nuptial agreement whereby they partition or exchange between themselves all or a part of their community property. Moreover, as a part of the exchange or partition, a couple may agree that the income or earnings of the exchanged property become the separate property of the owning spouse. Any property or interest in property exchanged via post-nuptial agreement becomes the separate property of the owning spouse.

For this type of post-marital agreement to be enforceable, it must be in writing and signed by the parties. Nevertheless, a party may challenge the validity or enforceability of an exchange or partition post-marital agreement by proving:

  • That he or she did not sign it;
  • That he or she signed the agreement under duress; or
  • At the time he or she signed it, the agreement was unconscionable (unfair)because a full and accurate disclosure of assets, liabilities, and other pertinent information had not been made by the other party and the party challenging the validity or enforceability of the agreement could not have had adequate knowledge of the assets and financial obligations of the other party.

A family law attorney in Austin may also assist clients who wish to use a post-nuptial agreement to convert separate property to community property. As with a partition or exchange post-nuptial agreement, a conversion post-nuptial agreement must be in writing and signed by the parties. It must also identify the property being converted to community property. The mere transfer of separate property by one spouse into the name of the other spouse or into both spouse's names does not convert that property to community property; a formal agreement must be executed.

A party may challenge a post-nuptial conversion agreement on the grounds that he or she did not sign it or that it was signed under duress. Additionally, one spouse may challenge a post-nuptial conversion agreement on the grounds that he or she was not given a fair and reasonable disclosure of the impact and consequences of the conversion.

There are a number of reasons couples choose to enter into post-nuptial agreements. One reason may be to protect one spouse's assets from the collection efforts of the other spouse's creditors. Another may be to provide a sense of security where the marriage is in trouble and the couple has agreed to try to work things out. An experienced Austin family attorney may also advise a couple to execute a post-nuptial agreement where one of the spouses is starting a new business, purchasing or buying into an existing business, or joining a family business or where one of the spouses has come into an inheritance. Couple in a common law marriage might also choose to have a post-nuptial agreement drawn up.

The Texas Family Code sets very specific requirements for creating a post-nuptial agreement. Therefore, it's best to hire an Austin family lawyer to draft your post-nuptial agreement. The Austin family lawyers at the Law Office of Willie and Dasher have extensive experience in drafting post-nuptial agreements and would be happy to answer your questions.

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