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Postmarital Agreements/Partition Agreements in McKinney, TX
For many individuals and couples, Texas’ community property rules do not provide for a satisfactory outcome in the event of a death or divorce. These rules provide that any assets that either spouse acquires during the marriage are owned equally by both spouses, while assets owned prior the marriage remain the original owner’s “separate” property (with a few narrow exceptions). Premarital agreements provide the opportunity to address the shortcomings of Texas' community property rules prior to the date of marriage. For couples that wish to establish alternate property rights during their marriage, this can be done through a postmarital (or “partition”) agreement.
Postmarital and Partition Agreements in Texas
The Texas Family Code specifically recognizes the validity of postmarital agreements. Under Section 4.102:
“At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property. The partition o exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse.”
As you can see, the law allows married couples to partition and exchange assets that they currently own or that they may acquire in the future. This allows couples to enter into partition agreements at any time, and to include provisions for future-acquired assets without the need to revisit their agreement at a later date.
Requirements for a Legally-Enforceable Partition Agreement
There are two basic requirements for a partition agreement to be legally enforceable. Under Section 4.105 of the Texas Family Code, (i) both spouses must voluntarily sign the agreement; and, (ii) the agreement must not be unconscionable toward a spouse who:
- “[W]as not provided a fair and reasonable disclosure of the property or financial obligations of the other party;”
- “[D]id 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”
- “[D]id not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.”
When preparing your partition agreement, our McKinney family lawyers can help you understand the various disclosure considerations involved, and we will include provisions specifically designed to satisfy the enforceability requirements of the Texas Family Code.
In most cases, both spouses are in alignment regarding the need for a partition agreement, and preparing the agreement is simply a matter of ensuring that all of the necessary provisions are included. But, there may be certain ancillary issues, such as creditors’ rights and estate planning considerations, to address as well. With years of experience drafting and reviewing postmarital agreements for clients in North Texas, we can make sure no issues go overlooked, and we can help you put an agreement in place that serves your family’s immediate and long-term needs.
Contact the McKinney Family Lawyers at Nordhaus Walpole, PLLC
If you would like to speak with an attorney about whether a postmarital or partition agreement is right for your situation, we encourage you to contact us for a free initial consultation. To schedule an appointment at our law offices in McKinney, TX, please call (214) 726-1450 or request an appointment online today.