What are common clauses in a prenup?

There are some common provisions that parties to a premarital agreement often want to include. The most common provision engaged spouses want to include in a prenuptial agreement is an identification of the property and debts of each party owned prior to marriage. The purpose of this clause is to identify what will be each party’s separate property after the marriage begins.

The second-most common clause in a Texas premarital agreement is a determination of whether the parties will accumulate any community property under Texas law, or whether the property of the parties acquired after marriage will remain each party’s separate property.

Parties may also contract regarding each party’s right to buy, sell, use, lease, mortgage, dispose of, or otherwise manage and control property, whether the community property of the parties, or the separate party of either party. Additionally, a premarital agreement may contain clauses regarding:

  • Income, deductions, and claims for filing tax returns
  • Management of household bills and expenses
  • Management of joint bank accounts, if any
  • Arrangement regarding investing in certain purchases or projects, like a house or business
  • Management of credit card spending and payments
  • Savings contributions
  • Property distribution to the survivor, including life insurance, in the event of death
  • Arranging putting one or the other through school
  • Settlement of potential disagreements, such as using mediation or arbitration

A premarital agreement may address how the parties plan to dispose of their property in the event of divorce, as well as the existence and terms of any spousal support.

The parties may address in a premarital agreement the disposition of property upon death, the provisions to be contained in either parties’ will, as well as the ownership and beneficiary rights of each party in a life insurance or retirement policy.

More generally, the parties may provide in the premarital agreement what laws will apply to the interpretation of the agreement. Most commonly, if the agreement is made in Texas, the agreement will provide a choice of Texas law for the interpretation and enforcement of the agreement.

A premarital agreement may contain other creative provisions that are important to the parties, provided that the provisions are not in violation of public policy or violate criminal laws.

For help in drafting your prenup, contact the Texas board certified attorneys at O’Neil & Attorneys.

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