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Question: I am thinking about getting married and want to know if I should have a pre-nuptial agreement prepared. I have a lot of assets and earn around $250,000.00 per year. My girlfriend is in school, she has no income or assets.

Answer: Pre-nuptial or premarital agreements are contracts prepared in contemplation of a marriage. Couples may agree to partition or exchange between themselves, at any time, any part of their community property, then existing or to be acquired, as the spouses may desire. They may also agree that the income or property arising from the separate property that is then owned by one of them, or that may thereafter be acquired, shall be the separate property of the owner. However, they may not include any provision that would adversely affect the right of a child to support. For example, the parties could agree that all property (earnings from employment) acquired during the marriage would be the separate property of the spouse who acquired the property.

How do you enforce a premarital agreement? The premarital agreement is not enforceable if the party against whom enforcement is sought proves: (1) that he or she did not sign the agreement voluntarily or (2) the agreement is unconscionable (totality of the circumstances of the agreement, for example circumstances of the execution of the agreement, disparate bargaining power, capacity to contract, maturity of the individuals, business backgrounds, education levels, proximity in time to the marriage, absence of counsel, oppressive one-sided nature of the agreement and the intent of the parties);and (3) the party resisting enforcement must also prove that before signing the agreement, she or he did not have or reasonablely could not have had adequate knowledge of the property or financial obligations of the other party. The foregoing explanation of premarital agreements is the "tip of the iceberg", the agreement is only beneficial if it can be enforced. A premarital agreement is a complex document, therefore, it should be drafted by a lawyer well versed in family law.

Collins & Associates
The Fassler Building
1004 Broadway Street   -   Galveston, Texas 77550
Phone: (409) 763-8616   -   Fax: (409) 763-2442
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