Texas Prenuptial Agreements, a/k/a Premarital Agreements

Marriages often join two individuals who promise their lives to each other– for better of for worse. Oftentimes, for worse comes sooner than the couple expected. Fortunately for these couples, Texas laws outline the concept called premarital agreements that could protect the assets of each spouse.  What does the Texas Code say about this? Let’s see. Houston Family Law & Divorce Lawyers (832) 410-8935. What is a Premarital Agreement? Chapter 4 of the Texas Family Code defines a premarital agreement as, “an agreement between prospective spouses made in contemplation of marriage and to be effective on marriage.” The spouses can create this agreement to protect the property of each spouse. The Code defines property as, “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.” Premarital Agreement Formalities Now that a premarital agreement is defined, the next question should be, how is one formed? Chapter 4 Texas Family Code states, “a premarital agreement must be in writing and signed by both parties.  The agreement is enforceable without consideration.” What can be in the Content of the Premarital Agreement? The state of Texas if very specific as to what can be included in the premarital agreement. The Code states, (a) The parties to a premarital agreement may contract with respect to: the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;  the modification or elimination of spousal support; the making of a will, trust, or other arrangement to carry out the provisions of the agreement; the ownership rights in and disposition of the death benefit from a life insurance policy; the choice of law governing the construction of the agreement; and any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty. (b)  The right of a child to support may not be adversely affected by a premarital agreement. This statute is very lenient on what can be done in terms of each spouse’s separate property and community property, with the agreement of both spouses. Spouses can contract that each spouses’ separate property is to remain separate property even if the property is accrued during the marriage. Unenforceability of a Premarital Agreement It is important to note that premarital agreements will become effective upon marriage and Chapter 4 Texas Family Code allows for the agreement to be amended or revoked by, “a written agreement signed by the parties.  The amended agreement or the revocation is enforceable without consideration.” What makes a premarital agreement unenforceable? Chapter 4 of the Texas Family Code states, a) A premarital agreement is not...
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Father – Presumed By Paternity Law in Texas

With modern-day technology, paternity is much simpler to establish. Texas statutes have also outlined the requirement for establishing and rebutting paternity. Let’s take a look. Divorce Attorney? Call (832) 410-8935. Paternity by Texas Law To be a presumed father, Texas law will presume an individual to be the father of a child until that presumption is proved or rebutted. The Texas Family Code outlines specific instances and situations in which the state presumes a man to be the father of the child. According to the Texas Family Code, FAM §160.204, the presumption of paternity is defined as follows: Sec. 160.204. PRESUMPTION OF PATERNITY. (a) A man is presumed to be the father of a child if: (1) he is married to the mother of the child and the child is born during the marriage; (2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; (3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce; (4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and: (A) the assertion is in a record filed with the vital statistics unit; (B) he is voluntarily named as the child’s father on the child’s birth certificate; or (C) he promised in a record to support the child as his own; or (5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.  Rebuttal Of Presumed Paternity The Texas Code also provides the means in which presumed paternity can be rebutted, “(b) A presumption of paternity established under this section may be rebutted only by: (1) an adjudication under Subchapter G [FN1];  or (2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.” As the statute states, the paternity may be rebutted by a judicial proceeding; or an Acknowledgment of Paternity singed by the child’s presumed father, determined father, and mother. The Acknowledgment of Paternity should include the presumed father’s denial that he was the child’s father, along with the filing of another person acknowledging paternity and is to be filed with the Vital Statistics Unit. Family Law Attorney (832) 410-8935 Call our office to speak to a family law attorney who can help with paternity matters in the Harris County, Tx area.  

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Reporting Family Violence in Tx – Houston Domestic Violence Resource

Family violence is a real and present danger to many Texas Citizens. Thus, it is important to know what exactly constitutes family violence under Texas law, what individuals must report family violence, and to what authorities must the violence be reported to. To tackle all of this, let’s dive into the statute. What Is Family Violence According to the Texas Family Code, FAM §71.004, family violence is defined as follows: an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), (H), (I), (J), and (K), by a member of a family or household toward a child of the family or household; or dating violence, as that term is defined by Section 71.0021. It is important to note that this statute does not include the reasonable discipline of a child. Reporting The Family Violence In later sections, the Texas Family Code details which individuals are encouraged to report the alleged violence. FAM §91.002 states, “A person who witnesses family violence is encouraged to report the family violence to a local law enforcement agency.” In §91.003, the Code even goes on to outline instructions to medical professionals who treat an individual for injuries that the medical professional has reason to believe were caused by family violence. The Code states the medical professional shall: Immediately provide the person with information regarding the nearest family violence shelter center; Document in the person’s medical file: (A) the fact that the person has received the information provided under Subdivision (1); and (B) the reasons for the medical professional’s belief that the person’s injuries were caused by family violence; and 3. Give the person a written notice […] completed with the required information, in both English and Spanish.” The Formal Notice To Adult Victims Of Family Violence As stated in subsection (3) of §91.003, a written notice is given to a potential victim. This notice states in part that, “It is a crime for any person to cause you any physical injury or harm even if that person is a member or former member of your family or household.” The form lists the telephone number of a law enforcement facility in which the violence should be reported and the legal rights the victim in order to deter further violence. These rights include asking a local prosecutor to file a criminal complaint against the abuse; applying to a court for an order to protect the victim; consulting with a legal aid office, a prosecuting attorney, or a private attorney. A court can enter an order that: prohibits the abuser from committing further acts of violence; prohibits the abuser from threatening, harassing, or contacting...
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What Is A Putative Marriage In Texas?

The discussion of bigamy in modern-day society has the most negative connotations. Although the Texas Family Code makes it illegal for an individual to have more than one spouse; Texas courts are still battling the continuing emergence of bigamy and what Texas calls a putative marriage. Article published by the Houston Divorce Attorneys (832) 418-8935. Marriages in Texas, Generally According to the Texas Family Code, every marriage in Texas is presumed valid, “in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.” The Putative Marriage in Texas Oftentimes, situations arise in which marriages become more complicated; for example, in situations where marriages are invalid but at least one party had a good faith belief that they were married. This situation occurs very frequently in Texas courts and is called a putative marriage. Fortunately, Texas implements the Putative Spouse Doctrine to remedy such situations. Good Faith Belief It is monumental that at least one party has a good faith belief that the marriage exists—this is a mandatory prerequisite to be recognized as a putative spouse. Good faith means that at least one party was ignorant to circumstances that prevented a valid marriage. This good faith prerequisite cannot be met by either party claiming to not know the applicable law. The Valid Marriage Presumption The Texas Family Code states, “When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.” The burden of proof is on the party attacking the validity of the marriage. Why the Putative Spouse is Important The existence of a putative spouse will usually emerge upon the probate of will or the division of the estate of a decedent who allegedly had more than one spouse. The division of property might greatly differ if a putative spouse proves to hold a valid marriage. Therefore, it is very important to determine the rightful heirs of an estate, one of whom may be a putative spouse. If you would like to speak to a Family Law Attorney in Houston, then call (832) 410-8935. Trending Topics – Texas Family Law Grounds for Divorce in Texas | Determining Child Custody | Common Law Marriage  

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How Is Child Custody Determined in Texas? Who gets the kids?

Child Custody is a sensitive issue handled by the Texas Family Courts. Texas courts will always prefer a joint managing conservatorship between the parents, however that may not always be the case. Let’s dive in to what factors the court considers while determining child custody. Speak to a Houston Divorce Attorney at (832) 410-8935. Types Of Child Custody Texas courts refer to parents as conservators. The Texas Family Code outlines the following custody categories: Sole Managing Conservatorship in which one parent makes all important decisions in the child’s upbringing; and Joint Managing Conservatorship in which both parents make all important decisions in the child’s upbringing. A family law judge will decide on the type of conservatorship unless the parents can agree on a custody plan; the plan will have to be approved by the court after being reduced to a written agreement. Appointing Managing Conservators Section 153 of the Texas Family Code describes whom may serve as a conservator of the child: (a)  In a suit, except as provided by Section 153.004, the court: may appoint a sole managing conservator or may appoint joint managing conservators; and if the parents are or will be separated, shall appoint at least one managing conservator. (b)  A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency. (c)  In making an appointment authorized by this section, the court shall consider whether, preceding the filing of the suit or during the pendency of the suit: a party engaged in a history or pattern of family violence, as defined by Section 71.004; a party engaged in a history or pattern of child abuse or child neglect; or a final protective order was rendered against a party. As described above, the court will consider any factors that indicate family violence, child abuse or neglect, and whether a protective order was rendered against either parent. Although Texas courts tend to favor the appointment of a joint managing conservatorship in order to encourage an amicable relationship between the child and the parents, the court considers various factors that may deviate from a joint managing conservatorship. Best Interest Of The Child It is unlikely to discuss child custody in Texas without discussing the “best interest of the child”. Section 153.002 of the Texas Family Code states, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” This is the single most important factor considered in Texas Courts. Other Factors Considered In Determining Child Custody Texas Family Courts will also give great weight to the following while deciding child custody: past parental involvement in the child’s life; the cooperation of parents with each other; household stability of each parent; continuity of the child’s life prior to divorce; the age of the parents; distance in geography between parents; past abuse; and the child’s wishes. It is important to note that the...
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What is Common Law Marriage In TX? See Also…Informal Marriage

When marriage is discussed, a religious ceremony and a civil proceeding may come to mind. Texas, however, recognizes an additional category of marriage—a common law marriage—what the Texas Family Code defines as an Informal Marriage. It is important to note that in Texas, there is no distinction between a Common Law Marriage and an Informal Marriage. Need a Family Law Attorney in Houston? Call (832) 410-8935 for a no obligation consultation over the phone. What is a Common Law Marriage or an Informal Marriage in Texas? Section 2.401 of the Texas Family Code sets out criteria which a couple must meet in order to be recognized as having a common law marriage. These criteria are as follows: (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:  a declaration of their marriage has been signed as provide by this subchapter; or the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married. (b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (c) A person under 18 years of age may not:  Be a party to an informal marriage; or  Execute a declaration of informal marriage under Section 2.402. (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable. In short, in order to have a valid common law marriage, there must be an agreement to be married; the couple must have lived together in this state as husband and wife (the statute is vague on what constitutes living together); and the couple must have represented to others that the marriage exists (for example, the couple must behave as a married couple in public). What are the Implications when Divorcing? Establishing that a common law marriage exists is monumental in Texas, especially in the event of a divorce. The Texas Family Code states, if a couple meets the criteria as having a common law marriage according to Subsection (a)(2) as stated above and the couple has ceased to live together, it is presumed by Texas Courts that no agreement to marry had existed. Couples may choose to separate and move on as if the marriage never occurred. However, just like a formal marriage, a divorce in a common law marriage allows the Family court to deal with matters such as current and future property division of the spouses and assigning rights in child custody proceedings.  These matters make it extremely...
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Grounds for Divorce in Texas…Family Lawyer Explains

Before filing for divorce, it is important to know what exactly will qualify as a proper ground for divorce under the Texas Family Code. Need a divorce attorney in Houston, call (832) 410-8935. Let’s jump right in… Texas law has listed the following as proper grounds for divorce: insupportability, cruelty, adultery, conviction of a felony, abandonment, living apart, and confinement in a mental hospital. It is important to note that Texas is a “no-fault divorce state”; this means that if one spouse files for a divorce, it is not necessary that the non-filing spouse have committed what constitutes “a bad act”. The Texas Family Code defines these grounds as listed below (Tex. Fam. Code § 6.001 – 6.007): Insupportability Divorce may be granted due to insupportabiliity – more commonly known as irreconcilable differences – if “the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” This is the most common ground for divorce in Texas; again, fault will not be considered in this ground.   Cruelty Divorce may be granted in favor of one spouse due to cruelty if, “the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.” The statute is vague as to what constitutes cruel treatment. Adultery Divorce may be granted in favor of one spouse due to adultery if, “if the other spouse has committed adultery”. Again, the statute is vague as to what constitutes adultery. Conviction of a Felony Divorce may be granted in favor of one spouse if during the marriage, the other spouse has:  has been convicted of a felony; has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state; and has not been pardoned. The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse. Abandonment Divorce may be granted in favor of one spouse if the other spouse: (1)  left the complaining spouse with the intention of abandonment; and (2)  remained away for at least one year. Living Apart Divorce may be granted in favor of either spouse if “the spouses have lived apart without cohabitation for at least three years.” Confinement in a Mental Hospital Divorce may be granted in favor of one spouse if at the time the suit is filed: (1)  the other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state (Texas) or another state for at least three years; and (2)  it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable. What About Defense to Divorce? The only defense for any of the above-listed grounds is condonation,...
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