Marital Agreements

In Texas it is not necessary for people to have a ceremonial marriage in order to be married. The courts in Texas recognize common law marriage and the Texas Family Code refers to it as a "marriage without formalities." Once people are married, any property they have or acquire after the date of marriage is presumed to be community property. If the parties end their marriage through divorce or annulment, the court must divide the community estate in a manner that the court deems just and right; and if the marriage ends with the death of one of the parties, the probate court must determine the character of the decedent's property and distribute the decedent's property to his or her heirs as required by law.

One of the best ways for people who are contemplating marriage, married or living together, to avoid conflict, is by having a well written agreement that clearly defines their relationship and their respective rights and duties in regard to their property. Under the current state of the law, this is important for same sex couples as well, because, the law recognizes that persons of the same sex can be married.

Prenuptial (Premarital) Agreements (Agreements in Contemplation of Marriage)

When people are contemplating marriage and are at an age or at a stage in their careers when neither one of them has any significant property or any expectation of inheriting significant property, the parties may not be concerned about what will happen in regard to their property if they should happen to divorce. However, if one or both parties have a child or children from a prior relationship, or if they have any significant property that they own at the time of marriage, whether it be a business, retirement, investments, real estate, beneficial interest in a trust or other property, have significant income, or the expectation of inheriting property, it is wise for the parties to give careful consideration as to what will happen if the marriage should end by divorce, annulment, or upon the death of either one or both of them. These are sensitive and often very difficult matters for a couple contemplating marriage to discuss. Nevertheless, all property owned or claimed by either spouse at the time of divorce or upon the death of a spouse is presumed to be community property subject to division upon divorce or distribution by law in the course of a probate proceeding.

We find that many problems can be avoided if the parties will discuss their property before getting married including their respective expectations concerning property if the marriage should end by divorce or the death or either one or both of them. By entering into a prenuptial agreement or an agreement in contemplation of marriage, the parties are able to clearly identify any separate property that they own at the time of the marriage, any debts and obligations they have at the time of the marriage, how their respective income will be treated during the marriage, and what will happen to their respective property upon dissolution of the marriage.

If you are contemplating marriage and have any concerns regarding your property, we encourage you to call our office and schedule an appointment to discuss the specifics of your situation. For your convenience we can schedule appointments after normal business hours in the evening and on Sunday, but not on Friday evening or on a Saturday.

Agreements Made After Marriage

For any number of reasons a married couple may wish to settle in advance any issues concerning the character of their property (separate or community) and the division of their community property if either party should initiate a divorce or other proceeding to dissolver the marriage, or if either one or both of them should happen to pass away. We find that a well drafted marital agreement can be a valuable tool for people who may be contemplating divorce or for those who may wish to continue the marriage but their lives separate and apart form each other. A marital agreement can save people a great deal of money by clearly identifying and confirming to each of them their respective separate property and by partitioning and setting aside to each of them their portion of the community estate. Thus, if the parties divorce or if the marriage should happen to end upon the death or either party, the parties may be able to avoid costly and protracted litigation over the character of their property and the division of same.

If you are married and have any concerns regarding your separate or community property, we encourage you to call our office and schedule an appointment to discuss the specifics of your situation. For your convenience we can schedule appointments after normal business hours in the evening and on Sunday, but not on Friday evening or on a Saturday.

Non-Marital Cohabitation Agreements

Because Texas is a state recognizing common law marriage, or as the Texas Family Code refers to it, a "marriage without formalities" people choosing to live together, including same sex couples, should seriously consider executing a non-marital cohabitation agreement. Such an agreement can be very useful in the event the parties should terminate their relationship and one of them should claim that the parties have a common law marriage. Although it is a sensitive issue for people to discuss, we encourage people who are living together or contemplating moving in together, to discuss their relationship and expectations of each other, and enter into a Non-Marital Cohabitation Agreement in order to make it clear, among other things, that they are not married and to address their respective property including any claims either party may have with respect to any jointly owned property they may acquire during their period of cohabitation.

If you are living with someone or plan to live with someone we strongly encourage you to call our office and schedule an appointment to discuss the specifics of your situation. For your convenience we can schedule appointments after normal business hours in the evening and on Sunday, but not on Friday evening or on a Saturday.