A marital agreement signed before the marriage is termed premarital agreement. Once the parties are married, they cannot enter into a premarital agreement. So, in the event married spouses decide to change the terms of their premarital agreement, the new agreement will be a post-marital or post-nuptial agreement. A post-marital or post-nuptial agreement is held to a higher standard than a premarital agreement. This is because after the parties are married, they have a fiduciary duty to each other. This means that each spouse has an obligation to conduct him or herself with the highest good faith and fair dealing relating transactions with the other spouse, and neither of may take unfair advantage of the other. The new agreement will be scrutinized and held to a higher standard of fairness. If the new agreement doesn’t meet the high standard of fairness, it will be voided.
As with the premarital agreement, each spouse will be entitled to full disclosure of any documents related to the modification. Because of the fiduciary duty owed after marriage, the disclosure is held to a higher standard than with a premarital agreement. So, if a challenge is made to the postmarital agreement, the quality of the disclosure will be evaluated under a high standard. If a party is found to have acted underhandedly or provided less than full disclosure, the postmarital agreement will be set aside and voided.
For help in drafting your prenup, contact the Texas board certified attorneys at O’Neil & Attorneys.