Houston Divorce Lawyer Explains Prenuptial VS Postnuptial Agreements

Use Caution When Using Internet Forms, TX Attorney Says

Video Transcript:

Duana Boswell-Loechel: 

Even if you find the form online, each party should have their own independent attorney review their prenup that they've drawn up themselves, just to make sure that everything is in line.

Tom Mustin: 

You've probably heard about prenuptial agreements, but what about post nuptial agreements? We're talking to the attorney Duana Boswell-Loechel about that on today's episode of Ask The Lawyer. Duana, thank you for joining us.

Duana Boswell-Loechel: 

Thanks for having me.

Tom Mustin: 

Great to have you. So are prenuptial agreements valid and enforceable in Texas? And what about post-nups, what are they and how are the two different?

Duana Boswell-Loechel: 

So, yes, in Texas, prenups are enforceable, if they are executed properly, just like any other contract, as long as there's no duress or one party has an unequal bargaining power, then most courts were are going to enforce any prenuptial agreements that are put into place. The big difference between a prenup and a post-nup is when they're executed. Obviously a prenup is before marriage and a post-nup would be after marriage. They basically accomplish the same goals as what the parties want to have done with their property, it's just a matter of when they are executed. And if you really want to enforce a the prenup, you can do a post-nup after marriage, that just kind of re-confirms that prenup that was executed.

Tom Mustin: 

So what are you trying to accomplish with a prenup or a post-nup?

Duana Boswell-Loechel: 

There are several things that can be accomplished with a pre or post-nup. One is to protect both parties in case of any kind of lawsuits or, obviously, nobody wants to plan for a divorce at the time that they're getting married, but it's a reality that it could occur, and so it's just ways that parties can predict or say what's gonna happen with their property in case of being in a lawsuit situation or in a divorce situation. A lot of times a prenup can actually head off a divorce, because it says out at the very first part of a marriage, how property is gonna work between the parties.

Tom Mustin: 

Okay, good answer. So what cannot be accomplished with a prenup or a post-nup?

Duana Boswell-Loechel: 

As a contract, they're usually pretty open. Obviously, you can't control what a third party has a right to, so you can't ahead of time say that only one party would get sued if they owed a credit or money or anything like that, so that's usually what your limitations are. It's also not good if we have one party that's... Doesn't speak English or that's their second language and they don't really understand what's going on, so those aren't good scenarios for a prenup.

Tom Mustin: 

Okay. So do the parties need a lawyer or can you just find something online?

Duana Boswell-Loechel: 

I would suggest a lawyer review them, so even if you find the form online, each party should have their own independent attorney review their prenup that they've drawn up themselves, just to make sure that everything is in line and that both parties fully understand and in doing that where each party has their attorney, that prenup is solidified a little better than if they just both sign it.

Tom Mustin: 

And along the same lines, can one of the parties have an attorney and the other not?

Duana Boswell-Loechel: 

They can, it's not advisable, both parties should have their independent counsel advise them as to what that prenup means and the ramifications that would come about as a result of that prenup and in that way, in the future, if there's ever an issue, both of them have consulted with an attorney, and that makes it a little harder to defeat.

Tom Mustin: 

And you were saying how important it is to get an attorney in this case, what kind of mistakes can happen with the form agreement, if you don't have an attorney?

Duana Boswell-Loechel: 

If you don't have an attorney, you could have obviously a contest, any kind of a prenup, if you ended up in a divorce situation of one party saying that they just didn't understand what they were signing. You could look at not properly taking care of your property the way that you wanted to, you could actually accidentally convert separate property to community property, which is probably what you're trying to prevent in the first place.

Tom Mustin: 

There we go. Well, great answers. Thank you for your expertise so much, Duana. We appreciate it.

Duana Boswell-Loechel: 

Thank you.

Tom Mustin: 

Nice job. And that's gonna do it for this episode of Ask The Lawyer. My guest has been Duana Boswell-Loechel. If you wanna ask Duana a question about your situation, call the number on the screen. Thanks for watching. I'm Tom Mustin for Ask The Lawyers.

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