Marital Agreements Attorney Houston

Texas law has comprehensive laws about the fiduciary duties [a duty (at common law or statutory) to act in the best interests of another]  between husband and wives regarding the property acquired during the marriage and what may happen to it upon divorce.  Cultural mores of the community tend to identify, if not actually set, the non-financial obligations of one spouse to the other during the marriage; but, violations of those mores is no guarantee of any kind of recompense to the offended spouse in a divorce action.  If those violations of the non-financial obligations are accompanied by some financial aspect, like buying a paramour an extravagant diamond ring, the offended spouse may possibly see some kind of financial recompense.  But not always!

Couples today are wary of the costs of family law litigation and the consequences of the division of marital assets by the courts.  This is true whether or not the couple wants to marry (PRE-MARITAL AGREEMENT) or plan never to marry formally but desire share in the successes of each partner and decide in advance how money and things will be divided upon dissolution of the partnership (CO-HABITATION AGREEMENT).  Additionally, married couples under certain circumstances wish to remain married but to separate themselves financially, if not physically, and Texas law provides that these couples may divide their present and future property and income, converting community property into separate property and even dividing separate property in a manner which the court could not do on its own authority (PARTITION AGREEMENT).

Negotiation of Marital Agreements

First and foremost: each party to the agreement must have separate counsel.  In Texas, a lawyer cannot wear two hats.  Because of the requirement of zealous representation of a client, a lawyer cannot divide his or her loyalties between two people with competing/opposing legal interests.

The best environment for the negotiation of any kind of marital or non-marital (cohabitation) agreement is in the Collaborative Law setting where the parties are in the same room with their respective lawyers and the four of them talk through the thorny issues of money, ownership, responsibilities, and the consequences of each decision.  If the relationship cannot stand up to that kind of pressure, then it is doomed from the outset and will fail in short order.

Things None of These Out-of-Court Agreements Can Do:

If the couple has children, these agreements cannot:

• determine the custody of a child;
• establish an enforceable schedule of possession of and access to the child;
• set an amount of child support which cannot be altered by a court;
• deprive a parent of the rights, powers, privileges, and duties of a parent as established by the Texas Family Code;
• deprive the Texas courts of final authority to determine all legal matters pertaining to the minor child while that child is under Texas jurisdiction.

It may well be that, should one of these agreements end up in litigation before a Texas court, the court may look at the agreement and adopt its terms as its own ruling, but the parents can never deprive the court of its final authority relative to minor children.

• These agreements cannot regulate sexual matters by contract in Texas.
• These agreements cannot alter any Texas law not specifically designated by the Legislature as alterable by contract.
• These agreements cannot alter the federal law and in particular, the Internal Revenue Code unless specifically designated by Congress or the Internal Revenue Service regulations as alterable by contract for which Congress or the Internal Revenue Code has provided alternate means of compliance.
• Beyond these limited areas, martial agreements can regulate almost anything the parties are willing to agree upon.

Pre- and Post-Marital (Property) Agreements

Couples who execute these agreements intend to marry ceremonially.  Prior to the marriage, they execute the PRE-MARITAL AGREEMENT and make a contract to ratify that agreement after their marriage by the execution of a POST-MARITAL AGREEMENT, also called a PROPERTY AGREEMENT.  But, before they walk down the aisle, they want to:

• make clear each spouse’s obligations, if any, as to the children of the other spouse from a previous relationship;
• identify their existing property and liabilities so that in the future there is no dispute about what was brought into the marriage (all Separate Property Assets and Separate Property Liabilities are clearly identified, listed and valued);
• limit the degree to which earnings and/or growth of separate property assets will become community property of both spouses;
• determine whether earnings during the marriage will be community property or not;
• limit their exposure to the future business or personal liabilities of their spouse-to-be;
• determine whether monies distributed by any trust for the benefit of a spouse will be characterized;
• determine how retirement plans of all kinds will be treated upon dissolution of marriage by death or divorce;
• determine whether or not any community property will be created during the marriage, including earnings and wages;
• on the filing of divorce and during its pendency, set forth who may or may not use the separate property of the other spouse whether or not a spouse may be entitled to temporary support, spousal maintenance (in Texas) or alimony (not provided by Texas law); each spouse’s obligation for attorney fees incurred during the divorce process;
• determine each spouse’s exposure to liability for the other spouse’s future credit transactions;
• determine how future household and personal expenses will be handled, including operational bank accounts;
• establish how the joint property will be identified and the percentage interest of each spouse in such property will be determined;
• establish how tax returns will be filed and the liability of each spouse thereon;
• determine a spouse’s rights upon the death of a spouse including:
1. a spouse’s right to a life estate in the homestead;
2. a family allowance, etc.;
• whether or not a right of reimbursement may be created in favor of one spouse during the marriage from the community estate of the spouses or from the separate estate of the other spouse;
• the place of performance of the contract and the litigation thereon;
• attorney fees for seeking to set aside or void any portion of the pre-marital agreement after execution

Your PRE-MARITAL AGREEMENT and ratifying POST-MARITAL or PROPERTY AGREEMENT may include all or only some of the foregoing or may include other provisions which are unique to your personal lives and circumstances.


After your agreement is completed, your personalized and private agreements will be discretely filed of record, keeping the information regarding your estate confidential. A family law attorney can help you make necessary modifications to the document. Call 713-840-9017 Today!


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