Premarital and Marital Agreements:

How does marriage affect property categorization and why does it matter?


When you get married, any property that you earn or acquire during the marriage becomes community property and therefore belongs equally to each spouse.  This also applies to debts accrued during the marriage.  Even if one spouse earns the income and/or accrues the debt, both taken on the income or debt as a unit.  Any property owned prior to the marriage is considered separate property and not part of the community as is any gift or inheritance acquired at any time (before or during) the marriage.   Any interest or income earned during the marriage on separate property is community property, as is all earnings of either party.  All this is further described in Texas Family Code 4.003(a)


What does a Premarital or Marital Agreement do?


Premarital and Marital Agreements are put in place most of the time by clients when there is a need or desire to:

1.               Keep income earned on separate property as separate property,

2.               Deem certain property separate or community that would otherwise be of mixed character,

3.               Keep certain earnings during the marriage separate property, and/or 

4.               Predetermine spousal maintenance or eliminate it in the event of divorce or separation.


In other words, parties to a Premarital Agreement can decide prior to marriage and parties to a Marital Agreement can decide during the marriage, what the character of their property will be upon the event of divorce or death, who will get what upon the event of divorce or death and if either spouse will get spousal maintenance.  Parties to a Premarital or Marital Agreement can also make an agreement to separate out all property so that no community property exists at all.


How enforceable are these agreements?


Though neither of these agreements completely guarantee that property disposition will not be disputed, Premarital and Marital Agreements are presumptively enforceable in Texas and difficult to challenge if drafted properly.

What does a Premarital/Marital Agreement NOT do?


A Premarital/Marital Agreement cannot have contractual provisions that adversely affect the right of a child to support. Though parties can enter into agreements regarding child custody and support, anything affecting the relationship of a child with his/her parents is up to what the Court determines is in the best interests of the child.  An agreement also cannot violate public policy, be used to defraud creditors, and/or waive any party’s ERISA benefits under federal law.   

(See Texas Family Code Section 4.003 (b)).