At Navarrete & Schwartz, P.C. in Midland, our family law attorneys offer a full spectrum of services to clients throughout West Texas, including postnuptial agreements (postnups) for married couples who want to clarify the financial aspects of their relationship going forward.
Although such agreements are sometimes mischaracterized as detrimental to romance, when properly used they can provide a practical clarification of family finances, invaluable if the couple ever decides to divorce or if one spouse dies prematurely. In the modern world where a significant percentage of marriages end in divorce, preparing for the possibility that it may occur — even if highly unlikely — may be wise, like preparing for a potential storm or accident.
The Importance of Creating a Document
Because money problems are one of the most common causes of marital tension, creating a document that spells out how assets and debts will be distributed to the individual spouses if need be can be reassuring, creating an atmosphere of calm in the household.
If you and your spouse are considering a postnuptial agreement, contact our knowledgeable, caring legal team to discuss your options.
Differences Between Postnuptial and Prenuptial Agreements
As their names indicate, postnuptial agreements are crafted after marriage, while prenuptial agreements are crafted before the wedding. In some cases, this makes postnuptial documents more helpful since they take into account possible problem areas that may otherwise become divisive. After living as a married couple, spouses typically have greater awareness of the specifics of their marital finances and are ready to have a more informed discussion of the matter.
Why Some Couples Want Postnuptial Agreements
Many couples feel differently about financial and other matters as the marriage progresses due to changes in circumstances and/or perspective. Couples may decide that a postnup is a good idea because:
- They have a prenup but their circumstances have changed and they want to create a new agreement that aligns with their current needs.
- They have hit a rough patch in the marriage and want to reconcile by clarifying and documenting financial decisions they now agree on.
- One spouse has accumulated considerable debt without their partner’s knowledge or consent and the other spouse doesn’t want to be responsible for repayment.
- One spouse has inherited a business and wants to protect it as a separate asset.
- One spouse has received a sizable inheritance and the couple wants the division of their assets to be fair, not only to both partners, but to the offspring of their blended family as well.
Issues Commonly Addressed in a Postnuptial Agreement
Many couples feel more comfortable and relaxed in the marriage once they have aired their financial concerns about the future, come to compromises satisfying to both partners, and documented them in a legally binding postnuptial agreement. These concerns may involve:
Division of Property
A postnuptial agreement specifies how the following assets will be divided in the event of divorce, legal separation, or death of one spouse:
- Real estate
- Investments
- Retirement accounts
- Personal belongings
- Debts
In many cases, one spouse will want a child from a previous marriage to be given or inherit a particular piece of property or a valuable personal belonging if that spouse dies or becomes incapacitated.
Marital vs Separate Property
At Navarrete & Schwartz, we know how critical it is that both spouses understand the distinction between marital and separate property when negotiating a postnuptial agreement.
Marital property is composed of assets acquired jointly during the marriage and includes:
- Income earned by either spouse
- Any increase in the value of separate property during the marriage
- Gifts given to one spouse by the other
- Separate property that is commingled with marital assets
Separate property includes assets owned by each spouse before marriage, such as:
- Property owned before the marriage
- Property inherited or given as a gift to one spouse before the marriage
To reiterate a noteworthy concept of both prenups and postnups: separate property becomes marital property if it is commingled with marital assets, for example, if separately owned funds are deposited into the couple’s joint bank account.
Rights and Responsibilities
Postnuptial agreements may also establish:
Financial responsibilities of each spouse by outlining the obligations of each to contribute to household expenses, savings, and investments.
Decision-making authority given to one spouse or defined by specific duties so that it is clear which partner will have the final say in particular financial matters like investments, major purchases, and financial planning strategies.
Spousal Maintenance
Postnuptial agreements are also helpful in clarifying under what circumstances one spouse will receive spousal support (alimony) in Texas, and can detail the amount and duration of support.
Note: Neither child custody nor child support is covered in either a prenuptial nor postnuptial agreement.
Enforcing Postnups in Texas
In Texas, postnuptial agreements are governed by state laws. These laws make it clear that the agreement must be:
- Fair to both parties, an unconscionable postnup cannot be legally enforced
- Written and signed voluntarily by both spouses without coercion
- Clearly understood by both parties, each of whom has full mental capacity
- Transparent, providing full, accurate financial disclosure by both spouses
- Specific in identifying separate and marital assets
If you are considering a postnup, you can trust the skilled attorneys at Navarrete & Schwartz to assist you in negotiating the terms of the agreement to the satisfaction of both parties and creating a legally binding document precisely to your specifications.
Contact Our Experienced Marital Attorneys Today
In dealing successfully with numerous Texas families, we have found that once couples explore the concept on which postnuptial agreements are based, they often become convinced that having a postnup drafted will strengthen their marriage, ease their path forward, and provide peace of mind to both partners. Contact Navarrete & Schwartz now to discuss this matter with our insightful, caring professionals.