Pre and Post Nuptial
Premarital and Postmarital Agreements
In Texas a premarital agreement is a contract between persons who are about to marry that provides protection from the creation of community property and/or protection of separate property during marriage. In a divorce a court may not divest a spouse from his or her separate property. “Community property” is the only property a court has the discretion to divide upon divorce. A marital agreement usually identifies as separate property all assets and liabilities existing at the time of the marriage. The parties can then agree that all such property shall remain separate, and that any increase or growth of, or interest earned from that separate property (which would usually be community property) also remains separate property. To effect a complete partition and elimination of community property accrued during the marriage, in addition to a premarital agreement, the parties must enter into a postmarital agreement shortly after the marriage.
In Texas a partition agreement is an agreement between spouses altering their rights in separate property, community property, or both. It can be entered at any time during a marriage. Spouses may partition or exchange between themselves all or part of their community property. A property agreement between spouses can change the character (community to sperate) of the property involved. Property transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. Usually, absent an agreement, the earnings and income from separate property would be community property. A partition or exchange agreement can include that future earnings and income arising from the property will be the separate property of the owning spouse.