Can I get a prenup after marriage? No, you cannot get a prenup if you are already married.
But, there’s still good news. If you’re already married and wishing you had signed a prenup, it’s not too late for you and your spouse. You can still sign a postnuptial agreement (or postnup), which achieves the same goals as a prenup in most cases.
Prenups are a common step before marriage. Texas community property rules are the reason why prenups are common in Texas. Texas’ unique community property laws are very different than the laws in almost every other state. These rules can produce unfair and unexpected results in many cases. Postnups are also common in Texas for the same reason.
Can I get prenup after marriage?
By definition, “nuptial” means “wedding” or “marriage” and “pre” means before. By definition, a prenuptial agreement is an agreement you sign before marriage. As a result, the answer to the common question – Can I get a prenup after marriage? – is no. You cannot get a prenup after marriage, only before marriage.
However, if you’re already married, you can sign an agreement known as a postnuptial agreement (or a postnup). A postnup can achieve the same objectives as a prenup, such as determining how property will be owned and managed during marriage, and how property will be divided in the event of divorce or death.
It is inevitable that even the happiest marriage will end, as in the case of a spouse’s death. Prenups provide protection in the case of divorce. And they’re also a valuable estate planning tool for committed and responsible couples wanting to plan for the future.
What’s the difference between a prenup and a postnup?
In Texas, almost everything that you earn or acquire during marriage (with very few exceptions) is considered community property. All community property is divided in a “just and right” manner in the event of divorce if you don’t have a prenup or postnup. In most cases, “just and right” means somewhere near 50/50.
A person’s salary, bank accounts, brokerage accounts, retirement savings, real estate, business interests and vehicles are common types of community property that is often divided between spouses in a divorce. Both a prenup and a postnup will help to ensure that whatever is most important to you remains your separate property and is not divided 50/50 in a divorce.
Indeed, married couples can achieve the same goals with a postnup that they’d want to achieve with a prenup in most cases. With either a prenup or a postnup, you can write the Texas community property rules out of your marriage. You can make it so that the Texas community property rules don’t apply to you and your spouse. It’s understandable if you feel that it would be unfair to divide everything you earn or obtain during marriage (with very few exceptions) in the event of divorce. For this reason, prenups are common in Texas.
To learn more about the Texas community property rules, and how they might produce unfair or unanticipated results in the event of a divorce, read my article: 5 Reasons Why People Want Prenuptial Agreements.
As an Austin prenup lawyer, I can help you understand the difference between a prenup and a postnup. And I can help you design a custom prenup or postnup that’s right for you and your family.
Prenuptial Agreements in Austin, TX
If you’re unmarried, but plan to be married in the future, then you and your spouse can sign a prenup well in advance of your wedding date.
A prenuptial agreement (or prenup) is a legally binding contract between two people who are not yet married, but who intend to get married. A prenup sets out how property each spouse brought into the marriage will be handled and how property acquired during the marriage will be owned, as well as how it would be divided in the case of divorce or death.
In the event of divorce, a prenup gives you and your spouse control over how assets would be divided in the event of divorce. This is the main purpose, function and advantage of a prenuptial agreement.
However, a prenups can also play a critical role in proving what a person owned at the time of marriage. In general, anything you brought into the marriage is considered separate property, not community property. Separate property does not get divided between spouses in a divorce. If you owned it before marriage, you keep it in a divorce. However, proving what you owned way back when you got married can be difficult, time consuming and expensive. And, in some cases, impossible if the records no longer exist. A prenup solves this problem by listing what you owned when you got married. As a result, you might not have to hire an expensive expert witnesses, such as a forensic accountant, to prove what you owned at the time of marriage in a Texas divorce case.
A prenup not only provides protection against unfair and unexpected results in the event of a divorce, but also serves as a valuable part of your estate planning. That’s right. Prenups (and postnups) are not all about divorce.
For example, someone who has children from a prior marriage can use a prenup (or postnup) to determine exactly how certain assets will pass to their children from a prior marriage in the event of death. Without a prenup (or postnup), surviving spouses could receive more and children from a prior marriage could receive less than what was planned for and intended. A prenup or postnup can solve this estate planning problem, along with many others.
Postnuptial Agreements in Austin, TX
If you’re married, then you cannot sign a prenup, but you can sign a postnup instead.
A postnuptial agreement (or postnup) is essentially the same thing as a prenup, except that only married couples can sign one. In this way, the main difference between a prenup and a postnup is the legal nature of your relationship at the time you sign the agreement.
Like a prenup, postnups identify how property brought into or acquired during the marriage will be owned during the marriage and divided in the event of divorce or death. Also like a prenup, a postnup can be designed to prevent Texas community property rules from applying in your case. For many couples, a postnup just seems fair.
Prenups are a common step before marriage, and postnups are increasingly common after marriage. If you have questions about whether a prenup or postnup might be right for you, contact Thompson Law to schedule a consultation.
If you’re thinking about a prenup or postnup, but feel nervous or anxious about bringing it up, then give me a call or read my article: How Do I Talk to My Fiancé About a Prenup?