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Dealing with debt in pre- and postnup agreements

El Paso residents who are getting married or who have already tied the knot might be concerned about having a different attitude toward debt than their future spouse. A prenuptial agreement or, for people who are already married, a postnuptial agreement, may help protect one spouse from the other's debts. While creditors may still pursue people for their spouse's debt, a pre- or postnup puts a framework in place that allows them to have the spouse pay them back.

Certain types of debt are more likely to be considered the responsibility of both spouses in the event of a divorce. For example, a student loan debt might be considered one that benefited both spouses if it allowed the student to get a better job with a higher income.

Both spouses should have their own attorney in negotiating this type of agreement, and both should be free of any coercion. The agreement can deal with division of both debt and assets. An agreement that gives one spouse the bulk of the assets may not stand up to scrutiny in court. A postnup is also more vulnerable to challenges because it is presumed that a person who is already married might feel more pressure to sign the agreement.

In a community property state like Texas, both assets and debts acquired after marriage are generally considered to be marital property unless there is a pre- or postnup. One exception is inheritances but only if they are not commingled with joint accounts or used in a way that benefits both spouses, such as for home repairs or renovation. If there is no pre- or postnup, a couple still has the opportunity to negotiate the division of assets and debts between themselves rather than having a judge do so.

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