Texas as a community property state traces its roots back to the days of the Germanic Goths, who wanted to give their warrior wives a share of the spoils. The concept was brought to the New World through the Spaniards who adopted and carried the laws of their Goth conquerors.
Since those ancient days, Texas law has been changed to allow a husband and wife, and even those about to get married, to decide how their property is to be treated. In the landmark 1947 case of King v. Bruce, the Texas Supreme Court allowed partition of community property by agreement after a married couple thought up schemes to partition their community property to set aside some money for the wife in case of the husband’s death.
Texas Constitution specifically protects property agreements
The Texas Constitution provides for agreements between spouses to exchange or partition among themselves all or part of their community property, or future interests in that property. It also allows husbands and wives to agree in writing that all or part of their separate property is community property.
One section of the provision includes “persons about to marry” and refers to a “future spouse” being allowed to exchange his or her community interest in property then existing or to be acquired. There is specific mention of laws to be passed defining the rights of the spouses and those about to be married. That resulted in sections of the Texas Family Code being enacted to deal with separate and community property upon divorce.
Premarital agreements becoming more popular
All around the world and in Texas, premarital agreements are on the minds of the engaged as the realization sinks in that a marriage is a partnership and has business-like features. Even if a premarital agreement regarding the division of property of the couple is executed, it must be drafted so that it is enforceable to protect assets and parties in different locations which may have different laws.
The Uniform Premarital Agreement Act has been adopted in 26 states including Texas, which enacted its law in 1997. Despite its clear requirements for written agreements that change the community property scheme, such agreements are often challenged in divorce or probate proceedings. Creditors may challenge premarital and marital agreements even though the constitution mandates that such agreements are assumed to be without an intention to defraud existing creditors.
Even with agreements, divorce can be contentious
Financial experts counsel that the quicker a divorce is settled, the more money is saved. Since Texas is a community property state, with no separation period, all property acquired from the time of the decision to file for divorce to the final decree belongs to both spouses. A premarital or marital agreement can specify how that property or the income from it is treated in a divorce.
Even with premarital or marital agreements in hand, you will be better served by having representation by a divorce attorney experienced in Texas law. Working with a lawyer can help you sort out your financial options in relation to the agreements and reach a fair division of property.