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Agreements in Contemplation of Marriage
Prior to marriage, parties may enter into a binding contract concerning their separate property as well as their future community property. Only by written agreement can parties change Texas rules which characterize separate property and community property. Thus, defining property by a premarital agreement precedes Texas courts' authority, when a just and right division of property is necessary because of a dissolution of marriage. Texas allows a written agreement between the parties without any limitations concerning property that is in existence at the time of the agreement as well as property that may be acquired in the future. The agreement cannot violate any laws nor can the agreement be against public policy.
Texas allows parties to enter into premarital contracts/agreements which characterize property prior to marriage, as well as contracts/agreements which allow spouses to partition community property, whether it is all the community property or only a portion of community property.
Agreements prior to marriage must be signed by both parties and usually become effective on the date of marriage. Sometimes a premarital agreement will terminate on the death of one of the spouses, which basically means, if our marriage survives, I will give, devise and bequeath all the assets to my surviving spouse. Agreements such as this usually include the making of a Will or Trust, which must comply with Section 59A of the Texas Probate Code. The Will should state the marital provisions of the premarital agreement. In the event of divorce, this authority (the Premarital Agreement) will divide any assets accumulated during the marriage because Texas Courts cannot divide separate property. The Court's authority to divide property during a divorce lie solely with community assets.
Both parties should seek independent legal counsel prior to signing a premarital or postmarital agreement. Both parties should have a clear list of all assets which are attached to the agreements and entitled "Exhibit A" or "Exhibit B." Premarital agreements should be signed and executed at least a month, if not more, prior to the marriage to avoid or suggest undue pressure, without thoughtful consideration. An attorney should prepare a premarital agreement as if a challenge will likely occur. These steps must be taken ahead of time to lessen the possibility of a successful challenge. More importantly, all contracts need to be written so, even in the event of a challenge, the contract remains bullet proof.
After marriage, the parties should confirm or sign again the Premarital Agreement. If the homestead is not included in the Premarital Agreement, a life estate has been created with the surviving spouse, even if the home was purchased prior to the marriage. I would advise anyone to consult an attorney to discuss these property issues so the future conflicts are minimized, if not completely avoided.
Before the divorce is final, the court may issue temporary orders to deal with immediate problems, such as conservatorship, possession, child support, and spousal support/alimony. Temporary orders can say who will live in the home, who will be able to write checks on the bank accounts, and who will have control of the children up until the divorce is final and permanent orders are put in place. In most cases, depending on the court, the spouses will be ordered to mediation prior to any hearing on temporary orders. Mandatory mediation helps lessen the case load at the court and helps the parties resolve issues without a court ruling.
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