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Points to keep in mind when drafting a postnuptial agreement

On Behalf of | Jan 27, 2023 | Divorce |

Couples often marry with stars in their eyes and visions of happily ever after. The idea of a prenuptial agreement may seem offensive and unnecessary.

However, the challenges of marriage can make the possibility of separation more realistic after some time. A postnuptial agreement could provide financial protection if a divorce happens.

Elements of a postnuptial contract

The agreement must meet the Texas standards for a contract. For example, handshake deals do not hold up in court. Even working together to draft a written agreement may not stand if illegal or unconscionable points enter the contract.

The agreement is primarily financial and requires both spouses to understand the complete economic picture. Both individuals should disclose all assets and liabilities. Any misrepresentation or deception can invalidate the document later.

Additionally, each spouse must understand the contract and sign it while in a competent mental state. Accusations of duress or mistake of material fact could also nullify the deal, but such arguments are difficult to prove to a judge. Couples can ensure the agreement will stand up by taking the document to a family court judge who can rule whether the contract is enforceable.

Factors that cannot enter a postnuptial agreement

State law requires the arrangement to be fair. An unbalanced deal that patently favors one party may not stand before a court during a divorce.

Texas follows standard practice and does not allow couples to decide on child custody in a postnuptial agreement. The agreement also cannot negatively affect any child’s right to support. However, spouses might be able to establish stipulations to protect a child’s interest.

Spouses benefit by considering the long-term picture when drafting a postnuptial agreement. What seems fair today may not be suitable years later.