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Using a marital agreement to protect your property

Many of our readers have heard of the increasing popularity of prenuptial agreements to protect property from division in the event of divorce. As useful as prenuptial agreements are, though, not every couple has the foresight to negotiate such an agreement prior to marriage.

In our last post, we mentioned the possibility of using marital agreements to protect assets from division. Texas law allows for the possibility of spouses agreeing to partition or exchange community property, as well as coming to an agreement regarding income or property from separate property.

Spouses are allowed to partition or exchange community property between themselves at any point in their marriage. This can be done with both existing property and property to be acquired in the future. This allows couples to clearly identify separate property, as well as income arising from transferred property. In addition, spouses are allowed to specify that income or property arising from separate property owned by one of them or which will be acquired by one of them shall remain separate. Married couples may also negotiate agreements to convert separate property to community property.

In any marital agreement, the proper formalities must be followed or the agreement will not be enforceable in court, which would defeat the purpose. These agreements must be in writing and signed by both parties, but are enforceable without “consideration,” which is the quid pro quo element of a contract which is ordinarily required.

In our next post, we’ll look at the enforcement of marital agreements and why it is important to work with an experienced agreement before entering into them. 

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