Guest Attorney: Eric Beal on Pre-Marital Agreements in Texas

There may be nothing as beautiful (or as hot) as a summer marriage in Texas. With all the preparation that goes into the making of a marriage, the last thing a couple wants to contemplate is how the marriage might end.

In Texas, there are two ways to marry, and two ways to "un-marry." Both "common-law" and ceremonial marriages are recognized in Texas. Once married, however, the only way to end a marriage is death or divorce. Texas does not recognize concepts such as "legal separation," and there is no such thing as a "common-law divorce."

Most people know that Texas is a community property state. The problem is that few people understand what that means. While volumes could be written on the subject, should a divorce occur, the basic concept is this: The court is obligated to presume that all property held by either or both spouses is community property and the court is free to divide the property in any manner it deems to be fair.

While it's true that any property owned prior to marriage is separate property, the burden is on the party claiming the property to prove its origin. Doing so can be an expensive and uncertain task. Moreover, common misconceptions like, "the name on a title proves ownership" or "my income is mine," are simply wrong.

In order to have as much certainty as possible regarding the disposition of property at the time of divorce is to enter into a Premarital Agreement-also known as a Prenuptial Agreement, Antenuptial Agreement, or "Prenupt."

The questions most often asked regarding such agreements are: 1) Do I need one? And 2) Are they enforceable?

Many people believe that Premarital Agreements are only for the rich. The thought is that if one doesn't have much, there is no benefit to the agreement. The reality is that such a belief can't be further from the truth.

Although nothing in a Prenupt can adversely affect the rights of children, virtually all aspects of property can be dealt with. Significantly, the parties can "opt-out" of the community property system such that there is no question "my earnings are mine and my spouse's earnings are [his or hers]." That means that potentially grossly expensive items that may arise should a divorce occur - such as temporary alimony and a spouse's attorneys' fees - can be dealt with and eliminated in advance.

With respect to enforceability, Texas law is clear. As long as the agreement was entered into voluntarily and the party seeking to "break" the Prenupt was given full disclosure of the finances of the other spouse or waived such disclosure prior to signing the Prenupt, a divorce court is obligated to enforce the agreement as written.

The ultimate question in deciding whether to seek a Premarital Agreement is the cost. One should certainly consider the potential emotional cost and one's unique situation. Does a request to sign a Prenupt "just in case" lead to a doomed marriage? The fact is that a second or third marriage later in life is a completely different animal than a first marriage for two 20-somethings.

It is naïve to not consider the cost-benefit of a prenupt in terms of actual dollars. In Tarrant County, Texas, a divorce can last two years of more. There's no statutory cap on temporary alimony and awards in excess of $10,000 per month are not unheard of. Finally, attorneys' fees in even moderately complex cases can amount to $50,000 or more, per side.

When considering all the facts, failing to obtain a Premarital Agreement prior to tying the knot can lead to the tying of a noose that one will regret for the remainder of one's life.

Eric Beal is a family lawyer and can be reached by phone 817-261-4333 or at 2920 W. Southlake Blvd, Suite 140, Southlake, TX 76092, or by visiting www.DFWdivorce.com.

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