“I heard that spouses can agree to divide property acquired during their marriage without going through a divorce. If that’s the case, how can it be done?”
A postnuptial agreement is similar in concept to a prenuptial agreement, except that it is signed during marriage. During the course of their marriage, spouses may agree to divide (the usual term used in family-law context is “partition”) or exchange between themselves any part of their then-existing or still-to-be-acquired community property. Such partition or exchange of community property between two spouses who voluntarily sign a document memorializing their restructuring of the community estate is referred to as a “postnuptial agreement”. Once a property interest is partitioned or transferred to a spouse pursuant to a postnuptial agreement, it becomes that spouse’s separate property.
Most states recognize a postnuptial agreement either statutorily or in “common law” or judge-made law. In Texas, postnuptial agreements are controlled under the Family Law Code, and if a party wishes to challenge the enforceability of a postnuptial agreement, that party bears the burden of proving the agreement was involuntary or unconscionable.
If you wish to enter into a postnuptial agreement with your spouse, you must remember that there are two basic rules that should be followed to safeguard your agreement: you must observe full and fair disclosure, and you must obtain separate and independent counsel.
Part of your full and fair disclosure obligation you will want to consider and discuss with your spouse:
(a) the financial aspect of your relationship, including each party’s role and responsibility in the handling of the financial matters, each party’s spending habits, and any concerns you may have over the above
(b) all the separate and community assets and debts as well as future your separate and community income opportunities, and
(c) how will the property be handled in the case of death or divorce.
Each one of you should obtain independent legal representation, then draw up and sign the agreement with the help of your lawyers. It is critical that you are each represented independently to maintain the contract’s legal validity.
Always remember to periodically revisit the postnuptial agreement. This will especially be the case if your financial situation changes from one period to the next, or if you relocate to a different state than the state where you originally signed your postnuptial agreement. If you move to a different state, contact an attorney to inquire on whether the laws or legal precedents of your new state of domicile don’t affect the status of your contract.
Marcela Halmagean is a family-law attorney and Certified Fraud Examiner in Houston and the principal of Halmagean Law Firm.