In 2005, Kanye West and Jamie Foxx advised all of us in getting prenups in their famous song “Gold Digger.” The lyrics of the song (in pertinent part) are as follows:
“Eighteen years, eighteen years
She got one of your kids, got you for eighteen years
I know somebody payin’ child support for one of his kids
His baby mama car and crib is bigger than his
You will see him on TV any given Sunday
Win the Super Bowl and drive off in a Hyundai
She was supposed to buy your shorty Tyco with your money
She went to the doctor, got lipo with your money
She walkin’ around lookin’ like Michael with your money
Shoulda got that insured, Geico for your money
If you ain’t no punk
Holla, “We want prenup! We want prenup!” (Yeah!)
It’s somethin’ that you need to have
‘Cause when she leave yo’ ass, she gon’ leave with half
Eighteen years, eighteen years
And on the 18th birthday he found out it wasn’t his?!”
Kanye and Jamie then go on about child support issues in their song, but we will leave that discussion for another day. The question is, was Kanye right about a spouse being protected from another spouse’s spending habits through a premarital agreement or prenup? Could Kanye have prevented the “gold digger” from getting lipo with his money when she was paid to buy Tyco toys?
Let’s dissect this under the premarital agreement laws in Texas. While the song is based on a female gold digger, we want our audience to bear in mind that pre-martial agreements are formed to protect the assets of all parties, male and female.
Texas Divorce Law
Texas is a community property state. Any property that was earned or acquired during the marriage is considered community property, subject to being split equally between spouses at the time of divorce. The same rule applies to all debt acquired during the marriage. One spouse can leave with half of all the assets that were made during the marriage and earnings earned during the marriage. Also, the other spouse can be left with half of debt that one spouse took on during the marriage.
A premarital agreement is a contract, in writing, entered into between prospective spouses to protect the assets of one or both spouses. It is effective upon the occurrence of a marriage, and can address division of all assets, including income, properties, retirement benefits, life insurance proceeds etc. It can even address debts taken on by parties. Furthermore, the law gives prospective spouses discretion to address future possibilities and the division of assets and liabilities based on those possibilities in a premarital agreement. In essence, prospective spouses can carefully tailor a premarital agreement with many details to ensure that they are completely protected in future.
What assets can be divided in a pre-marital agreement? Texas law provides that the contents of a premarital agreement can include:
- The rights and obligations of each party in any property of both parties, whenever the property was acquired. This could include property that was made by one spouse during the marriage and even before the marriage.
- The right to buy, sell, use, transfer, lease, assign, create a security interest in mortgage, in any property.
- The disposition of property at separation, at the time of divorce, at death of one spouse, or at the occurrence or the non-occurrence of any event decided by the spouses.
- The elimination of spousal support at the time of divorce.
- The ownership rights or disposition of death benefits in a life insurance policy.
- The choice of law governing the agreement
- Any other matter, including their personal rights and obligations, as long as the matter does not take away any criminal penalties one may face, or violate any public policy reasons.
- The right to child support may not be adversely affected by a premarital agreement.
Essentially, a couple can tailor the division of assets and liabilities in any way they want in Texas. They can agree on the amount of spousal support provided if there is divorce, they can agree on whether one spouse would get the benefits under life insurance policy of the other spouse upon death. They can even decide whether the law of a different state would apply to the agreement, giving them leverage in picking state laws that are more restrictive or more relaxed on marital property agreements.
Interestingly, a premarital agreement can also discuss the possibilities at the occurrence or non-occurrence of some events. For example, it is common for spouses to contemplate the occurrence of infidelity and place provisions restricting alimony of the cheating spouse. On the corollary, the agreement can state that if one spouse does not attend X number of counseling sessions before filing for divorce, that spouse will be entitled to less alimony than he/she would have otherwise.
Premarital agreements do have some restrictions:
- Parties cannot agree on terms that would adversely affect child support. Texas child support laws are statutory, and the amount of child support is based on a percentage of the parent’s income. A premarital agreement cannot agree to lower the amount of child support.
- Parties cannot violate statutes that impose criminal penalties. For example, parties cannot agree in a premarital agreement that in the event one spouse has been found to commit forgery, he/she would not be criminally liable.
So, was Kanye right hollering for a prenup? Yes! A premarital agreement would have prevented his “punk” friend from a lot of the mental anguish he suffered. The gold digger was legally entitled to half of the spouse’s money but he and the gold digger could have entered into a prenup that would have restricted her access to his property, any alimony she was entitled to, and even any benefits she was entitled to upon his death. His premarital agreement could have even stated that if their children are not well fed, cleaned, and provided educational toys from Tyco, she would receive less alimony upon divorce. This would have prevented her from getting all that lipo with his money.
Is there a Solution for Kanye’s Friend
Yes. The solution for people such as Kanye’s friend, is to get a Partition and Exchange Agreement, or a post marital agreement. Under Texas law, a partition agreement is a contract in writing, signed by both spouses, entered any time during the course of divorce. A partition agreement would serve the same function as a premarital agreement – it would be an agreement dividing the assets and liabilities of parties.
Pre and Post Marital Agreements are complex that need the expertise of an experienced attorney. Our firm has assisted many people in drafting pre and post martial agreements addressing all future issues, to out clients’ full satisfaction.
If you’d like to know more about premarital agreements, give us a Call At 832 -930 -1529 to talk to our experienced staff.