In recent years, the stigma associated with prenuptial agreements has begun to disappear. Couples across the country and here in Texas no longer view them as unromantic or “tempting fate.” Instead, they are making their decisions based on practicality and the reality that the possibility of the marriage ending is real regardless of how they feel about each other now.

Moreover, couples tend to take the idiom that it’s “better to prepare for the worst and hope for the best” to heart. Perhaps part of this new attitude comes from the fact that people marry older or remarry quite a bit these days. They already have their own assets that they want to protect in the event of a divorce. If you agree with these contentions, you may be looking for more information about these agreements.

The basics

First, the primary purposes of a prenup are to identify the separate property of each party, determine spousal support and decide how to divide marital property in the event of a divorce. As an aside, a prenuptial agreement also serves as an estate planning tool, but this article will focus on how it pertains to divorce. In order for your prenuptial agreement to remain valid in a divorce, consider the following:

• Don’t wait too long to broach the subject with your future spouse. Executing a prenup too close to the wedding casts doubt on the voluntary nature of it.

• Each of you must have time to separately consult with an attorney to ensure the agreement is in your best interests and that you do not waive any important rights.

• You and your future spouse must provide full disclosure of your financial situations. If you fail to do so, it could invalidate the agreement.

• Your agreement must not put one of you at an unfair advantage. An agreement that leaves one of you financially disadvantaged will most likely not pass the scrutiny of the court.

• Clearly identify any separate property you own prior to the marriage. The court will not include such property in the marital estate during a divorce.

• You and/or your intended may waive the right to spousal support, or alimony, in your prenup. You need to carefully consider this move, which makes it an important topic to discuss with a family law attorney prior to signing.

• Make sure the execution of your agreement complies with current Texas law. Otherwise, the court could invalidate it.

The above may have raised more questions for you than it answered. If that is the case, you could take advantage of the need for legal counsel before even talking to your future spouse about your desire for a prenuptial agreement.