Divorce Without a Prenup

If one’s prenuptial agreement is well-written, applicable to the marriage, enforceable, and will hold up in court, then issues of property division and spousal support (the most common points of contention) are far less likely to cause the same amount of conflict and financial ruin.

What happens when you don’t have a prenuptial agreement, but want or need a divorce?  

Divorce gets much trickier, as you would imagine. The whole purpose of a prenuptial agreement is to ensure that most of the major issues of a divorce are established before either spouse even is served papers. Without a prenuptial agreement, issues like property division and spousal support need to be negotiated or litigated at a time when both parties are in a highly emotional state.

Good legal representation – from divorce attorneys who know the laws of Texas inside and out – will give you the highest likelihood of a fair division of assets.  It simply takes more time and effort without a prenup, because everything is examined.

How does Texas divide assets without a prenup?

Texas is a community property state. That means any property earned or acquired since the date of the marriage is owned by both spouses and both spouses have a right to 50% of it.

Yet divorces here in Texas get as messy as they do anywhere.  Why?  One reason is that “separate” or “non-marital” property does not in fact belong to both spouses. That means that disputes can arise about whether or not certain property should be divided up during a divorce. One spouse will say “yes, that’s marital property.” The other spouse will invariably say, “no, it isn’t.” Attorneys’ legal arguments over what is and what is not non-marital property is the main reason divorces without prenups are so much harder.

What assets cannot be put into a prenup in Texas?

In Texas several kinds of assets can’t be put into a prenup. For example, a prenup cannot waive a future spouse’s retirement benefits. A prenup also cannot violate any laws, defraud any creditors, or contain any language that prevents a parent from paying child support. In Texas you can make a few limited decisions about conservatorship and visitation, but the judge will still reserve the right to overturn those decisions if they seem detrimental to the child.

Certain provisions are unenforceable. For example, you cannot make your spouse maintain a certain weight by putting that requirement into a prenup – even if he or she signed the prenup.

Is divorcing without a prenup a problem for both spouses, or only for the wealthier one?

It is a problem for both spouses because of Section 7.001 of the Texas Family Code:

“In addition to the division of the estate of the parties required by Section 7.011, in a decree of divorce or annulment the court shall order a division of property in a manner the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

“Just and right” leaves the judge ample discretion to make any number of calls, any of which may be detrimental to either spouse.

Some property is devalued in the division of propery. Some property, such as a business you may own, may be actively threatened by being divided up in divorce. 50/50 splits of property are rarely possible. What is more likely is an “equitable” division, which often is not 50/50.

A prenup is your chance to plan things out with your soon-to-be spouse and decide what’s equitable for yourselves, at a time when you both love each other and want to look out for one another’s best interests. Rest assured that a one-sided or blatantly unfair prenup will not be honored by a judge or court, which means you have little to lose by working with your partner on a prenup.

Does a prenup matter if the couple didn’t have high assets?

It matters whether either of you as significant debt, or either of you has or anticipates creating intellectual property, or if you believe you might inherit a significant sum, or if you just want more control over what happens in the event of a divorce.  It also matters if one was married previously or has children from a previous marriage.

Your situation today may not match your situation tomorrow. Your fortunes may well shift – for better and for worse – as you build a life together.

When is a postnuptial agreement a good option?

A postnuptial agreement is created after you’re already married, but with the same aim: to have a frank conversation and to create an agreement about what should happen to the assets in the event your marriage does not work out.

Postnups are legal in Texas. As with a prenup, you each should have your own attorney advise you on the major areas covered by the postnup.

A postnup may make particular sense if your fortunes have changed recently. For instance, if one of you has launched a business, has received a large inheritance, or is now collecting royalties, then a postnup does make sense.


How late is too late to sign a postnuptial agreement?

If nobody has served anyone else divorce papers it’s not too late to get a postnuptial agreement. Indeed, some couples get a postnup soon before a separation, when they begin to suspect a divorce may be inevitable but are still working to save the marriage.

Thought it might feel uncomfortable to bring up the idea of a postnuptial agreement with your spouse you should not be afraid to have the conversation. Remember: a good prenuptial agreement protects both spouses.

All marriages end one day: either through divorce or through the eventual death of a spouse. Prenuptials and postnuptial agreements are simply vital financial-planning and estate-planning instruments that take reality into account.

Contact Evans Family Law Group (offices in Austin and Bastrop) today to discuss your situation and goals.