Getting a Prenup in Texas

This video features Jimmy Vaught, a Family Law attorney based in Texas.

Austin Divorce Attorney Outlines the Dos and Don’ts

Video Transcript:

Jimmy Vaught:

I always encourage people to get a lawyer. Even if that’s just hiring someone to look over it and advise them of the effect.

Rob Rosenthal:

Do you know how prenups work in the state of Texas? We're going to find out because that's what we're going to ask the lawyer today.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com, and my guest here to answer our questions is Austin attorney Jimmy Vaught with the Vaught Law Firm. Jimmy, good to see again. Thank you for helping us out.

Jimmy Vaught:

My pleasure.

Rob Rosenthal:

So we're going to talk about prenuptial agreements. So first of all, I assume they're valid and enforceable in Texas. Tell us a little bit about them.

Jimmy Vaught:

Sure. Well, they’re valid in Texas, and if they're done correctly they're enforceable. The key there is if they're done correctly.

Rob Rosenthal:

So Texas being a community property state, does that have any bearing on a prenup and how they work, or are they not connected at all?

Jimmy Vaught:

Well, they're somewhat connected because what a prenup does is it sets aside the property, like this house is owned before marriage, so that's going to be their separate property if there's a divorce or a death. So that actually agrees to not create a community property estate at all.

Rob Rosenthal:

Okay. So what does a prenup do then? You said it sets aside property. What's the purpose? What can they accomplish?

Jimmy Vaught:

Well, it can accomplish a whole lot of things. For example, like I said, it divides the property or retains property as separate property even after divorce, and you can also do things like debt allocation; you can do things like an agreement to either include some spousal support or alimony in the prenup, or you can say there's no alimony or spousal sport to be granted at all. You can also do things like have pet provisions; who gets custody of the pet or if there are any type of dietary restrictions or veterinarians that they go to. You can also do things like having a kind of signing bonus when they get married; one spouse pays the other spouse a certain amount of money. You can agree what money one spouse is going to pay to the other and that would be considered separate property. You can also include a severance bonus, if the parties do get divorced that one spouse pays the other spouse a certain amount of money. Sometimes it can be significant.

Rob Rosenthal:

Seems like I've heard two people have—and this may be just celebrities that do this sort of thing—but like an infidelity clause or something there. Is that a thing?

Jimmy Vaught:

You know, there's all sorts of things like that. You can have all sorts of provisions; the infidelity clause is one thing. There's also provisions concerning sex; who is going to do what with whom and how often.

Rob Rosenthal:

Wow.

Jimmy Vaught:

So that's more of a celebrity thing, but yes. Almost anything could be done in a prenup. I’m sure I’m leaving some out. You can have religious provisions, particularly if there is interfaith marriage; where a child's going to go to school, what churches are they going to be brought up in. So you can do all sorts of things.

Rob Rosenthal:

So let's take the other side. What cannot be accomplished in a prenup? What can you not get it to do for you?

Jimmy Vaught:

Sure. Well, basically, the rights of a child can't be adversely affected. And also you can't make agreements that would affect, let's say, custody. Anything like that as far as children upon divorce.

Rob Rosenthal:

So I think I already know the answer to this question, but is this the sort of thing somebody could just go, “You know, let's download a form from online. We'll just fill it out. We don't need our attorney to get involved to do this.” What's your advice there?

Jimmy Vaught:

You know, I always remember a business plot called prenup-in-a-box, and that's kind of a similar deal. But I always advise people to get a lawyer quite frankly. Because the requirements for making an enforceable prenup are very strict. And, for example, you have to have a waiver of financial exposure signed before. The party signing the prenup, they may not realize that or appreciate the importance of that, so I always encourage people to have a lawyer. Also, sometimes people come in and they say, “Well, my spouse-to-be/fiance is not going to have a lawyer.” I always encourage people to get a lawyer. Even if that’s just hiring someone to look over and advise them of the effect.

Rob Rosenthal:

That was going to be my next question. So if one person in the marriage, one of the couple says, “My attorney will handle it for both of us.” That's not something you advise.

Jimmy Vaught:

No, and actually I can only represent one of the parties. So to me, it doesn’t really affect its enforceability. I always insist that the other party have a lawyer look at it. Even if they just review it and tell them the legal fact; I always advised them to do that.

Rob Rosethal:

So that's also the reason why it's worth it to have an attorney look over it instead of trying to do it yourself.

Jimmy Vaught:

Right. Because let's say, for example, the parties do it themselves. Let's say they mess it up; the consequences can be significant. Because if the whole idea is to protect their separate property money or anything else, that can actually be thrown out if they don't do it right.

Rob Rosenthal:

It sort of comes back to where we started; just getting it done isn't the goal. Getting it done and having it be enforceable and actually something that will stand up is the goal, right?

Jimmy Vaught:

That's absolutely correct. And like I said, the requirements are very strict. If you don't dot your Is and cross your Ts, it can be thrown out.

Rob Rosenthal:

Excellent, very helpful information as always, Jimmy. Thank you for making some time and answering our questions.

Jimmy Vaught:

Of course, my pleasure.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Austin attorney Jimmy Vaught with the Vaught Law Firm. Remember, if you want the best information or you like the idea of being able to choose a lawyer that lawyers choose, go to askthelawyers.com. Thanks for watching, everybody. I'm Rob Rosenthal with AskTheLawyers™.

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