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Preparing a pre- or postnuptial agreement

Since Texas is a community property state, a married person might be held responsible for debts incurred during the marriage even if they are in the name of the other spouse. Therefore, the couple may want to consider creating a pre- or postnuptial agreement. Both types of documents may also specify how assets and liabilities will be divided in the event of divorce. These can be particularly useful to protect one spouse if the other one is bringing debts into a relationship or is prone to running up debts. However, these agreements need to be prepared carefully so that their legitimacy is not questioned in court. Postnups may be the focus of particular scrutiny since there could be more coercion around signing one.

One thing a judge will look for is whether each party had separate legal counsel and that neither felt pushed into signing the agreement. The agreement should also be fair. If one person is saddled with the bulk of the debt, the agreement should explain why. The document can even include a provision that allows one spouse to examine the credit report or other financial records of the other spouse.

A postnup might also be challenged if one spouse assumes all the debt and then the spouse files for bankruptcy shortly before the divorce. This could be seen as fraud.

An attorney might be able to assist a person with a pre- or postnuptial agreement and ensure that it helps to protect the client. While putting together this type of document might be difficult because a couple would prefer to not think about splitting up, they might be happier with the division of property that they decide upon compared to what a judge might order.

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