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A post-nuptial partition agreement is an agreement between married parties to convert certain or all "community property" to the "separate property" of a spouse. While addressed in the Texas Family Code, post-nuptial partition agreements are also contractual in nature, thus governed by the rules of contract law as well. Tex. Fam. Code Sec. 4.102 states as follows:

"At any time, the spouses may partition or exchange between themselves all or part of their community property, then existing or to be acquired, as the spouses may desire. Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse's separate property. The partition or exchange of property may also provide that future earnings and income arising from the transferred property shall be the separate property of the owning spouse."

Furthermore, "[a]t any time, the spouses may agree that the income or property arising from the separate property that is then owned by one of them, or that may thereafter be acquired, shall be the separate property of the owner." Tex. Fam. Code Sec. 4.103.

The Texas Family Code also requires that partition/exchange agreement to be in writing and signed by both parties. Tex. Fam. Code Sec. 4.104. For enforcement of a post-nuptial partition agreement, Tex. Fam. Code Sec. 4.105 states:
  1. A partition or exchange agreement is not enforceable if the party against whom enforcement is requested proves that:
    1. the party did not sign the agreement voluntarily; or
    2. the agreement was unconscionable when it was signed and, before execution of the agreement, that party:
      1. was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
      2. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
      3. did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.
Most parties have an attorney draft their post-nuptial agreement, thus problems with enforceability of the agreement might not be best addressed by the attorney who drafted the document. If you are interested in having a post-nuptial partition agreement or have questions regarding the enforceability of your post-nuptial partition agreement, contact our office today for an initial consultation.

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