Many couples get a prenuptial agreement before they get married, and then rarely think about it again if the marriage is going along fine. However, it’s always wise to take a look at it from time to time just to make sure it still applies to your current reality.
A prenup isn’t considered voided simply because circumstances have changed, like the amount of assets you have, the decision for one spouse to leave the workplace or one spouse accumulating considerable assets (or debt) on their own.
While you can’t technically update a prenup, you can put a new agreement in place. This is considered a postnuptial agreement. Even if you don’t have a prenup, you can develop a postnup, which can address the same matters as a prenup.
Division of assets and debts
Even if you have a prenup addressing division of assets and debts, those could look considerably different than they did before you married. One or both of you may have inheritances, intellectual property rights or other things of value that you didn’t anticipate. Since Texas is a community property state, many couples use a postnup if they don’t want to divide their marital property 50-50.
Spousal maintenance
A postnup can also address spousal maintenance, which is Texas’ legal term for alimony. If one spouse has been the primary or sole earner in the family, the other spouse can use a postnup to help ensure that they get fair spousal maintenance in a divorce. This can be especially critical if they’ve put their career on hold to raise the children, help their spouse in an unpaid role in their career or have had health challenges.
Certain things cannot be addressed in a valid postnup. These include child custody and support matters (because a judge has to approve those based on the best interests of the child). Further, behavioral or lifestyle requirements (like losing weight or not engaging in adultery) often don’t hold up in court. Anything that’s egregiously unfair to one spouse would likely be ruled invalid as well.
As with a prenup, it’s important that each spouse has their own legal representative when negotiating and signing a prenup. At the very least, each spouse should get to review the document before they sign it. Without that separate representation, it might not hold up in court if it’s challenged. While a well-crafted postnup can certainly make any future divorce go more smoothly, it’s a good insurance policy even if you never need it.
