Waldron & Schneider recently published a post detailing the necessities and utility of entering into a premarital agreement or prenup. This blog post follows by detailing post-marital agreements as an option for dictating the terms for property distribution in the event of a divorce. Post-marital agreements may additionally be referred to as postnuptial, partition, or exchange agreements, depending upon the source.

As previously indicated in the prenup blog post, Texas law broadly allows parties to enter into contracts so long as they do not violate public policy. The Texas Family Code dictates that a post-marital agreement will be held invalid if reasonable disclosure of property or financial obligations is not provided. Accordingly, full disclosure of assets and liabilities is recommended before entering into a post-marital agreement, in addition to seeking advice from legal counsel.  

Divorce proceedings are often stressful and burdensome. A valid post-marital agreement allows spouses to preemptively craft the terms of eventual property distribution without extensive litigation. An enforceable post-marital agreement can prevent the risks of uncertainty and legal costs for both spouses. Parties are more likely to reach an amicable agreement when the possibility of divorce seems unlikely or distant, meaning it is often best to execute a post-nuptial agreement in advance. 

While divorce is an important consideration for post-marital agreements, divorce is not necessary for such an agreement to be useful. Many post-marital agreements are simply prenups which were proposed before marriage and adopted afterwards. A post-marital agreement can require that certain property which would ordinarily be community property to instead remain separate property of a respective spouse. Even if the parties never divorce, this can provide a level of asset protection in the event of one spouse incurring a debt. Importantly, and the same is true for prenups, the actions of the parties should reflect the terms of such an agreement to ensure effectiveness.

Additionally, post-marital agreements can be made in preparation for divorce and even after divorce proceedings have begun. This is typically a negotiation regarding marital assets which, as above, is aimed at avoiding unnecessary litigation and costs. This type of post-marital agreement is essentially a separation agreement between spouses or a property settlement.

Waldron & Schneider’s transactional attorneys are experienced in drafting post-marital agreements that conform to the desired intentions of spouses. We ensure that post-marital agreements are drafted in accordance with the requirements of Texas law and sufficiently detailed to prevent litigation over the interpretation of terms.

If you are interested in a post-marital agreement now or in the future, contact our office today to speak with one of our attorneys about what makes the most sense for you.

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