When people hear the term “marital agreement,” they often think of prenups—contracts signed before a wedding. But Texas law also recognizes postnuptial agreements (often called partition and exchange agreements), which are entered after marriage. These agreements can be just as important, especially for couples whose financial situations evolve after the vows are exchanged.

What Is a Postnuptial Agreement?

A postnuptial agreement is a legally binding contract between spouses that defines how property, debts, and other financial matters will be handled during the marriage or upon divorce or death.

Unlike a prenuptial agreement—which anticipates marriage—a postnup applies to spouses who are already married. In Texas, these are governed primarily by Chapter 4 of the Texas Family Code, particularly Sections 4.102–4.104.

How Postnups Differ from Prenups

The main distinction lies in timing and context:

• Prenuptial agreements are executed before marriage and take effect upon marriage.
• Postnuptial agreements are executed after marriage and take effect immediately upon signing.

Because a couple is already legally bound when they sign a postnup, the transaction receives greater scrutiny. Courts are wary of undue influence between spouses and require proof that both acted voluntarily and with full financial disclosure.

Key Requirements Under Texas Law

For a postnuptial agreement to be valid in Texas, the following must generally be satisfied:

1. It must be in writing and signed by both spouses.
   Oral agreements aren’t enforceable.
2. It must be voluntary.
   A spouse cannot be coerced or threatened into signing.
3. There must be fair and reasonable disclosure.
   Each spouse should have a full understanding of the other’s assets and debts at the time of signing.
4. It must not be unconscionable.
   Even with voluntary consent, a court can invalidate an agreement if it is grossly one-sided or fundamentally unfair under the circumstances.
5. The subject matter must be proper.
   Postnups can define property rights and management, but cannot adversely affect child support obligations.

The Role and Importance of Legal Counsel

While Texas law does not strictly require each spouse to have independent counsel, doing so is strongly recommended. Independent counsel helps ensure:

• Each spouse understands the legal implications of signing.
• The agreement is not later challenged as unfair or signed under duress.
• The drafting process properly reflects community property, separate property, and potential tracing issues.

In practice, if only one attorney drafts the agreement, it’s prudent to include clear written disclaimers confirming that the attorney represents only one party and that the other spouse had the opportunity to seek independent advice.

Common Reasons Couples Choose Postnups

• Change in wealth or business ownership after marriage.
• Inheritance or family gifts that one spouse wants to preserve as separate property.
• Debt protection, such as shielding one spouse from the other’s business liabilities.
• Marital reconciliation—couples who nearly divorced sometimes use a postnup to rebuild trust through financial clarity.

Practical Tips

• Exchange current balance sheets or net worth statements before signing.
• Use specific schedules of assets and debts as exhibits.
• Include Texas-specific legal references (e.g., Texas Family Code §4.102).
• Execute the agreement with notarization and witness signatures when possible.
• Store copies safely and communicate with estate planners so wills and trusts align with the agreement.

Conclusion

A well-drafted postnuptial agreement provides clarity, security, and peace of mind. It can protect a business, secure family assets, or simply provide financial transparency. But because of the heightened legal scrutiny that applies once a couple is married, experienced family law counsel is essential to ensure the agreement is enforceable and tailored to the couple’s unique circumstances.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.