A postnuptial (or postmarital) agreement is essentially the same as a prenuptial agreement, except that you and your spouse enter into it after you have already gotten married, rather than before. Postnuptial agreements, also known as partition agreements, allow spouses to specify how they will divide their money and property in the event of a divorce. Texas is among the states that recognizes the legal enforceability of postnuptial agreements. As McKinney divorce attorneys, we are experienced in assisting our clients with the preparation of postnuptial agreements, to ensure that they are legally enforceable, address all ancillary issues, such as creditors’ rights and estate planning considerations, and meet your family’s immediate and long-term needs.

Should We Consider a Postnuptial Agreement?

Texas is a community property state, meaning that any property acquired during a marriage, including wages, benefits, and real property will likely be considered community property.  Although Texas courts follow a “just and right” rule and will divide the community property in a fair and equitable manner as they see fit, each spouse may, with some exceptions, receive half of the community property.   

For spouses who do not want these default rules to apply, a partition agreement can be useful solution. It allows you to dictate for yourselves how your property should be divided in the event of a divorce. Just as with a prenuptial agreement, you can agree that certain assets (such as a home or business) are the sole property of a single spouse and/or you can agree that future income will not become community property.  In other words, you can “partition” community property into separate property.   

What are the Requirements for a Valid Partition Agreement?

To prepare a postnuptial agreement, you and your spouse must disclose to each other all the money and property you currently own, both separate and marital. The disclosure obligation is key to the validity of any agreement. There must be full and fair disclosure of all assets. Under Texas Law, there are two basic requirements for a partition agreement to be legally enforceable. First, both spouses must voluntarily sign the agreement. Second, the agreement must not be unconscionable (excessively unfair) toward a spouse who:

  • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
  • Did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

Let Our McKinney Divorce Attorneys Help You

If you have questions about whether a postnuptial or partition agreement is right for your situation, we welcome you to contact us for a free consultation.