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How does a prenup work?

A contract to resolve property division and other issues, a prenuptial agreement is not available only to the rich or famous. A couple entering a marriage may, under Texas law, sign these agreements to address the management and control of their property, division of their property following divorce or death and spousal support.

Generally, a spouse may keep everything owned before the marriage. Spouses can also keep gifts or inheritances received during marriage. Income, property or other assets obtained during marriage is community property that has to be shared when the marriage is dissolved.

Parties can agree to separate some of their marital property such as income, and still share their earnings as community property. They can also decide to keep their assets separate so there is no community property.

Prenuptial agreements can also cover matters relating to children if a court determines that, like other child-related issues, the agreement is in the child's best interest. However, a prenup cannot restrict the child's right to support.

Other limitations govern a prenuptial agreement. Its terms cannot violate public policy or any law that contains criminal sanctions. These agreements may not be used to intentionally defraud any pre-existing creditors.

The agreement cannot waive a future spouse's benefits that are governed under the federal Employment Retirement Security Act. After marriage, the spouses will have to enter an agreement approving any pre-nuptial term impacting retirement benefits if they address these benefits.

A prenuptial agreement has to be in writing and signed by both spouses. The parties must disclose their assets and liabilities before executing the prenup.

Parties can challenge a premarital agreement if a party did not voluntarily enter the prenup or signed it because of another party's misrepresentation. Also, it is unenforceable if it was an unconscionable agreement before it was signed. This occurs when the party can prove that they did not receive a fair and reasonable disclosure of the other party's assets or financial obligations, there was no waiver of future disclosures and the spouse did not have reasonable knowledge of the other party's property or financial obligations.

A properly drafted agreement helps protect rights and preserve assets. Legal representation can help assure that these agreements are properly drafted to withstand a court challenge when there is a prenuptial agreement dispute.

Source: Texas Bar Journal Client Page, "The wedding planner: What you need to know about prenuptial agreements before you tie the knot," Judith Bryant, Accessed July 3, 2016

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