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Proven Trial Attorneys Experienced in Evaluating and Challenging Prenups
The most common reason for a couple to enter into a prenuptial or postnuptial agreement — also called a marital agreement — is a significant disparity between their financial circumstances at the time of marriage. Other reasons may include either party’s serious debt load or desire to provide for children from a prior marriage. At the Law Office of J. Kevin Clark P.C. in Fort Worth, we help spouses draft marital agreements and counsel couples who are evaluating them. In particular, we are often called upon to evaluate whether a prenuptial or postnuptial agreement can be enforced or nullified in divorce proceedings.
If you have questions about drafting or evaluating the terms of your marital agreement, contact our team online or at (817) 241-3328 for a free consultation.
Prenuptial and postnuptial agreements establish terms for the distribution of property, assets, and debts should a couple separate. The only distinction between a prenup and a postnuptial is that a prenup is written before marriage and a postnuptial is written after the couple is married (during the marriage).
Marital agreements in Texas can address any of the following issues:
- the rights and obligations of each spouse regarding property;
- who has what rights to buy, sell, use, transfer, exchange, lease, dispose of, or otherwise manage or control property;
- the allocation of personal or real property if one of the spouses dies or if the parties separate or divorce;
- rights to alimony;
- the making of a will, trust, or other arrangements to facilitate the provisions of the agreement;
- the rights to the death benefit from a life insurance policy.
Note that a prenup or postnuptial cannot establish child custody and child support arrangements, as these issues are decided by the law based on the child’s best interests at the time.
In general, couples may want to draft a marital agreement if:
- either spouse brings significant debt into the marriage;
- one or both spouses plan to bring property into the marriage;
- one spouse is much wealthier or poorer than the other;
- one or both spouses are remarrying;
- one or both spouses have children;
- one or both spouses want to secure their estates.
You can invalidate the prenuptial or postnuptial anytime by entering into a subsequent agreement (in writing) that either disavows or alters the agreement. Both parties must agree to do this for the decision to be valid.
As mentioned above, marital agreements can be legally enforced in Texas as long as they are in writing; oral contracts are not enforceable. Marital agreements are also not enforceable if the court finds any of the following to be true:
- one of the spouses didn't sign the agreement voluntarily; or
- the agreement is "unconscionable," or so grossly unfair that it would be against the interests of justice to enforce it.
Note that an agreement may be unconscionable in any of the following circumstances:
- one of the spouses failed to provide the other spouse with a fair and reasonable disclosure of all financial obligations and property owned;
- one of the spouses did not voluntarily and expressly waive, in writing, any right to said disclosure;
- one of the spouses did not have adequate knowledge of the other spouse's property interests and financial obligations.
In short, full financial disclosure by both parties is required for a marital agreement to be valid. If a lawyer can prove that assets were undisclosed or undervalued, the agreement may be declared fraudulent and void. Additionally, other strategies for “busting” a prenup could be arguing that some provisions are extremely unreasonable and unfair, that one spouse was pressured to sign, or that the document was not properly witnessed.
If you are considering or preparing for divorce and have a prenuptial or postnuptial agreement in place, you will need an experienced attorney to examine your binding legal contracts and protect your spousal rights. The Law Office of J. Kevin Clark P.C. has over 70 years of combined experience and is well connected to accountants and other professionals who may prove invaluable in your case.
For a thorough review of your marital agreement and your finances in a divorce, call (817) 241-3328 or reach out to us online. We will respond as promptly as possible and prioritize your case.
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Certified in Civil Trial Law by the Texas Board of Legal Specialization since 1987.