Free Texas Postnuptial Agreement Template

A Texas postnuptial agreement is a written contract spouses sign during the marriage about their property. In this community property state, the Family Code sets out two kinds of marital property agreements: one partitions or exchanges community property, and the other converts separate property to community property.

Partition or Exchange Agreements

Spouses may partition or exchange community property (Tex. Fam. Code § 4.102). A partition or exchange agreement isn’t enforceable if the challenging spouse proves they didn’t sign voluntarily. It’s also unenforceable if they prove it was unconscionable when signed and, before signing, they:

• weren’t given fair and reasonable disclosure of the other spouse’s property or financial obligations,
• didn’t voluntarily and expressly waive further disclosure in writing, and
• lacked, and couldn’t reasonably have had, adequate knowledge of that information (Tex. Fam. Code § 4.105(a)).

A court decides unconscionability as a matter of law (§ 4.105(b)).

Agreements to Convert Separate Property

An agreement to convert separate property to community property must be in writing, signed by the spouses, identify the property, and specify that it’s being converted to community property. It’s enforceable without consideration (Tex. Fam. Code § 4.203(a)). Simply transferring separate property into the other spouse’s name, or both names, isn’t enough (§ 4.203(b)).

Disclosure of the Legal Effect

A conversion agreement is unenforceable if the challenging spouse proves they didn’t sign voluntarily or didn’t receive fair and reasonable disclosure of its legal effect (Tex. Fam. Code § 4.205(a)).

If your agreement converts separate property to community property, include the statutory statement. When it appears, or substantially similar words, prominently displayed in bold type, capital letters, or underlined, the agreement is rebuttably presumed to give fair and reasonable disclosure of its legal effect (Tex. Fam. Code § 4.205(b)):

“THIS INSTRUMENT CHANGES SEPARATE PROPERTY TO COMMUNITY PROPERTY. THIS MAY HAVE ADVERSE CONSEQUENCES DURING MARRIAGE AND ON TERMINATION OF THE MARRIAGE BY DEATH OR DIVORCE. FOR EXAMPLE:
“EXPOSURE TO CREDITORS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO THE LIABILITIES OF YOUR SPOUSE. IF YOU DO NOT SIGN THIS AGREEMENT, YOUR SEPARATE PROPERTY IS GENERALLY NOT SUBJECT TO THE LIABILITIES OF YOUR SPOUSE UNLESS YOU ARE PERSONALLY LIABLE UNDER ANOTHER RULE OF LAW.
“LOSS OF MANAGEMENT RIGHTS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO EITHER THE JOINT MANAGEMENT, CONTROL, AND DISPOSITION OF YOU AND YOUR SPOUSE OR THE SOLE MANAGEMENT, CONTROL, AND DISPOSITION OF YOUR SPOUSE ALONE. IN THAT EVENT, YOU WILL LOSE YOUR MANAGEMENT RIGHTS OVER THE PROPERTY. IF YOU DO NOT SIGN THIS AGREEMENT, YOU WILL GENERALLY RETAIN THOSE RIGHTS.”
“LOSS OF PROPERTY OWNERSHIP. IF YOU SIGN THIS AGREEMENT AND YOUR MARRIAGE IS SUBSEQUENTLY TERMINATED BY THE DEATH OF EITHER SPOUSE OR BY DIVORCE, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME THE SOLE PROPERTY OF YOUR SPOUSE OR YOUR SPOUSE’S HEIRS. IF YOU DO NOT SIGN THIS AGREEMENT, YOU GENERALLY CANNOT BE DEPRIVED OF OWNERSHIP OF YOUR SEPARATE PROPERTY ON TERMINATION OF YOUR MARRIAGE, WHETHER BY DEATH OR DIVORCE.”

Any Texas postnuptial agreement should also include:

• Agreement type — partition, exchange, or conversion
• Property description — each asset covered, identified clearly
• Disclosure record — property and financial obligations, or a written disclosure waiver
• Signature page — for both spouses

It depends on the direction of the change. To turn community property into each spouse’s separate property, use a partition or exchange agreement. For the reverse, turning separate property into community property, use a conversion agreement.

The two follow different enforcement rules. So a Texas postnuptial agreement that does both should label each part clearly and meet the requirements for each.

Follow these steps for a Texas postnuptial agreement:

1. Choose the agreement type. Decide whether you’re partitioning, converting, or both.
2. Identify each asset. Describe every item the agreement covers.
3. Provide disclosure. Share property and financial obligations, or document a written waiver.
4. Add the conversion statement, prominently displayed, if you’re converting separate property.
5. Execute together. Each spouse signs the written agreement.
6. Keep the original with your property records.