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What can and cannot go into a premarital agreement

| Jun 24, 2020 | Prenuptial Agreements |

When two people get married, each brings his or her property to the relationship. This may take the form of income or earnings, personal property and sometimes real estate. During the marriage, the couple will almost certainly acquire property as well. A premarital agreement is a way of determining what will happen to the property in the event of a divorce. 

According to Texas statutes, premarital agreements become effective upon marriage provided that they appear in writing and both parties sign. However, such an agreement is not enforceable if it contains provisions deemed unconscionable by the court. In other words, the agreement must meet requirements as to its inclusions and exclusions. 

Inclusions 

A premarital agreement typically addresses issues that may arise as a result of the dissolution of the marriage pertaining to money and property. These include ownership rights over life insurance, disposition of marital property and spousal support elimination or modification. Couples can also exercise their choice of law to determine which jurisdiction will govern the agreement. 

Exclusions 

According to National Paralegal College, a prenuptial agreement cannot contain provisions regarding parental duties, child custody or visitation. The reason is that these decisions have to be in the child’s interest, which is impossible to determine in advance. Although child support is a financial matter, the law expressly states that a premarital agreement cannot adversely affect the right of a child to receive financial support. In other words, a prenuptial agreement cannot contain a provision allowing a parent to pay less child support than the child deserves to receive, which may be up to the court to decide.