How Can You Protect Your Rights To Property Through A Premarital Or Marital Property Agreement?
- posted: Nov 02, 2014
Texas is a community property state, which means that all property you and your spouse acquire together during marriage is community property. In Texas, the courts divide marital property equally, 50/50, between spouses. During divorce, the first step involved with property division is characterizing whether the property is separate or community.
The advantage of using a premarital or a marital property agreement (also called a community property partition agreement) is being able to establish property as separate that the courts would otherwise consider community property under Texas laws. For example, under Texas marital property law, when a spouse owns stocks or land as separate property and receives income from the property, such as dividends or rental income, the income received is not separate property ― it is community property. However, Texas law allows you to regard community property as separate property by establishing a written agreement with your spouse that partitions or exchanges community property. Even so, during divorce, the law presumes that all property is community property, and to establish property as separate, you must be able prove it through clear and convincing evidence. Your premarital or marital property agreement can serve as proof, as long as it is a legally sound agreement that complies with certain factors, such as not being written under duress, or coercion, and is not influenced through deception.
A premarital or marital property agreement can also stipulate that your or your spouse's wages or salary is separate property. By working with an experienced divorce lawyer, you can draft an agreement to dictate property division and protect your assets.