Originally, such agreements were found to be unenforceable. Other couples choose to shelter their own resources from the real or perceived obligations of their partner. Not withstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. Texas Legislature enacted Section 4.
Case law states that a confidential relationship between husband and wife imposes the same duties of good faith and fair dealing on spouses as required of partners and other fiduciaries. The marital agreement is considered to be a contract under Texas law. However, care must be given to see that such agreements protect the party, keep with public policy, and adhere to current Texas family law and applicable contractual law. In post-marital agreements, it has been noted that a fiduciary duty exists that is not present in pre-marital agreements between spouses or prospective spouses. But with amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, such agreements are now enforceable under contract law. Matters that may be dealt with in a premarital agreement include, but are not limited to, the following: Child support may not be adversely affected by a premarital agreement. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. Therefore, provisions providing for the elimination of child support upon separation or divorce are unenforceable. For some couples living together is a precursor to marriage; for others, there is no intent to ever marry, or the law prohibits the marriage, as in Texas with same sex marriages. No actual consideration is required; however, to conform with contractual law, it may be wise to provide benefits for the non-monied party to avoid a later finding of unconscionability, particularly if the financial condition of the non-monied party under the agreement will be poor. Other couples choose to shelter their own resources from the real or perceived obligations of their partner. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. Texas Legislature enacted Section 4. The simple fact is, domestic partnership agreements involve a wide variety of circumstances, which may or may not involve the gay or lesbian couple. The premarital agreement must be in writing and signed by both parties. However, provisions for private education, college expenses, and choice of residence may be included, but may still be reviewed by a court to determine if they are in keeping with public policy. Cohabitation, domestic partnership, premarital and post-marital agreements may be as creative as a party determines necessary. In situations such as trust funds or inherited funds, beneficiaries simply do not want to place family money at risk. Not withstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable. Originally, such agreements were found to be unenforceable. Many couples choose to live together so they do not lose certain benefits under current rules of social security, military and insurance disability programs, or to stop those benefits from being taken away from their children. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization Cohabitation and Domestic Partnership Agreements in Texas Live Chat Cohabitation and Domestic Partnership Agreements in Texas Premarital and post-marital agreements in Texas have a complex history immersed in the community property presumption, the sate constitution, statutes and case law.
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