The Houston Family Law Blog

Postnuptials and You: It's Not Too Late If You Don't Have a Prenup

Well, to be honest, if you are married it is too late for a prenuptial agreement. But that's only because of the English language and all. The prefix "pre" means before, thus a prenup can only be before a wedding.

However, it's not too late to determine exactly where the money will go and who owns what after a marriage hits the skids (and before there's even a hint at anything besides marital bliss). This can happen with a document called a postnuptial agreement. As opposed to "pre," "post" means after, so it can be done directly after a wedding or even years after. You just need to follow the proper steps in writing and signing it.

Here's how it works:

A postnup has most of the same requirements as a prenup and the same results. While some may feel that these agreements are for divorce planning and are non-romantic, they can help with estate planning and asset protection in certain circumstances.

Say you want to form a new risky business venture. If you go out on a limb and borrow money for your business and it ends up failing, then the lenders will come after your property. The way that lenders go after property is to first go after a borrower's separate property and then the borrower's community property.

Community property is anything that the couple has acquired since marriage. So if there is no pre- or postnup defining what is what, it is possible that your community-property house could be seized if your borrowing was excessive and you couldn't repay it otherwise. To save your house in this type of situation, the non-businessperson spouse could designate the house as her own separate property so that lenders could not come after it.

To make sure that a postnuptial agreement is valid, it needs to:

  • Be in writing,
  • Be signed by both parties who have the mental capacity to do so,
  • Include a full disclosure of assets and liabilities, and
  • Not be unconscionable.

Bottom line: If you are considering either a prenuptial or postnuptial agreement, it is best that both parties consult a local family lawyer to help draft the agreement and ensure that it will be enforceable.

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