Prenuptial Agreements: What They Are & Who They Protect

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In 1983, the Uniform Law Commissioners (ULC) enacted the Uniform Premarital Agreement Act (UPAA). A prenuptial or premarital agreement is, according to the ULC, an agreement made in contemplation of marriage that becomes effective at the time of marriage. More than half of the states in the USA have adopted the UPAA, including Texas. Any state that has adopted the UPAA recognizes prenuptial agreements as valid.

What Can a Prenuptial Agreement Protect?

Prenuptial agreements can protect both parties in a marriage, securing their obligations and their rights with respect to personal property. Should one party own a house before the marriage, the ‘prenup’, as they’re commonly referred to, may include a provision that would make this spouse responsible for all the costs connected to the maintenance of the property.

A prenup can also protect the parties’ rights to conduct any given transaction concerning property. The prenup may state that if one spouse owned a vacation home, that spouse could retain the sole authority to sell, lease or rent the property. However, the other spouse could be given the right to use the house and live in it during a specified season.

Prenuptial agreements can also define the disposition of a property in the event that the marriage ends, or one spouse dies. Such a provision can state that should one spouse admit to infidelity, a forfeiture of property may occur, or that a cash payment can be made to the other party. Prenuptial agreements can also designate the laws through which jurisdiction of the terms of the agreement will be interpreted, and in what court any legal action should take place.

The conditions of a prenup may cover, include or exclude nearly anything that the parties agree that it should. Many issues including personal obligations and rights can be written into the agreement.

What Are the Limitations of a Prenuptial Agreement?

No prenuptial agreement may contain provisions that violate criminal law or public policy. While the obligations of spousal support vary from state to state, either party may waive the right to receive spousal support.

Certain spousal support provisions may or may not be honored by the court, depending on state law. An agreement that is otherwise valid may be disregarded if a spouse is eligible for welfare. The court may require that spousal support not fall below the level that would raise the supported spouse out of poverty level conditions.

Premarital agreements cannot determine child support. The court will be required to follow the guidelines of the state.

Fairness and disclosure are essential to a court’s ability to enforce a prenup. Both parties are required to have voluntarily entered into the agreement for it to be valid. If these conditions are not met, the prenup cannot protect both parties equally.

Do I Need a Prenuptial Agreement?

It’s no secret that premarital agreements are unromantic. A couple considering marriage may not like to think about the possibility of divorce, but this attitude is unrealistic. Roughly 75 percent of American marriages end in divorce, and 15 percent regret not having a prenuptial agreement in place before the marriage. Taking the proper steps to protect your assets before marriage can save time, money, grief and needless heartbreak.  Contact Orsinger, Nelson, Downing and Anderson, LLP for a confidential consultation, and let our experienced Texas Family Law attorneys guide you into protecting yourself in the event of divorce.