In the famous words of Kanye West, “Holla, "We want prenup! We want prenup!" We’ve all heard of a prenup, but do you know what it means and what it can do?
I’m Lawyer Alexandria Serra, this is Lawyer Talk Thursday (catch it every week on Instagram
@alexandriaserra), and you’re about to find out.
Prenup 101
A premarital agreement, or prenup, is an agreement between soon-to-be spouses. It’s a contract, plain and simple, that goes into effect when you marry.
The point of a prenup is to set out the rules for dividing property in a divorce. A prenup determines who gets to keep what percentage of things like income and earnings, real estate, business assets or other types of property.
There really is only one thing that the agreement can’t change and that’s child support. You can also agree to exclude spousal support as an option upon divorce.
Getting Started
To have a valid prenup in Texas, it just needs to be:
- In writing.
- Signed by both parties (voluntarily);
- Both spouses disclosed assets or liabilities prior to the agreement; and
- Both spouses waived the right for further disclosure.
You could create a prenup on your own or find online resources, but I don’t recommend using an online form when your entire life savings are at risk … lawyer up!
What if you don’t have a prenup? Is there such a thing as a postnuptial agreement? Absolutely … if they’d sign it. Good luck with that - but it is possible!
Benefits of a Prenup!
Why would you want a prenup? To protect your assets. To protect yourself from your partner's debts. Marriage is risky, folks.
So let me break it down. There’s two types of property when we’re talking about divorce or marriage: Community property and separate property. Community property is all the stuff which is acquired after marriage - the good and the bad. Anything that you had before marriage is considered separate property. Separate property, if you can prove that it was yours before the marriage, stays yours after divorce.
Normally, if you don’t have a prenup, community property is going to be split by a judge during a divorce. A prenup can change that.
For example, it can outline that one spouse keeps all the assets and liabilities related to their business, and the other party only gets a certain amount. A prenup can also list what is separate property from the start - so there’s no confusion.
Before You Say “I Do”
Let’s say you signed a prenup - are you stuck in that agreement after you get married? Can the prenup be changed?
Absolutely! But only a signed written agreement by all parties can be used to change or get rid of the original prenup.
You may think it’s a little backwards to be thinking about divorce at the start of a new marriage, but remember that Kanye is totally right. “when she leaves yo' ass, she gon' leave with half.”
Want to chat some more? Feel free to email me at info@serralawpllc.com.