Prenuptial agreements can make decisions in advance about many issues, but they used most often to decide questions of property division. This is also the case in postnuptial agreements, which are signed after the couple has already been married. Rather than dividing the community property according to the dictates of Texas law, the married couple gets to decide in advance how to divide their assets through an agreement they signed before the divorce.
Courts in Texas and other states have dealt with many prenuptial and postnuptial agreements, and the property division issues are more or less clear. Still, courts have not yet come up with consistent ways to deal with certain issues.
Recently, the top court in another state heard arguments in a case that involved a dispute over what to do with frozen human embryos in a divorce. The case involves a married man and woman who were going through fertility treatments in order to have a child. Part of the treatment involved fertilizing egg cells to create human embryos which could be implanted in the mother later. It is typical for the procedure to produce extra embryos, which are frozen for later use or destruction. The couple signed a contract with the fertility treatment company agreeing that unused embryos would eventually be destroyed. The couple had a daughter using the process, but they later divorced. Now the ex-husband says he has changed his mind and no longer wants the embryos destroyed.
More than 10 years ago, the Court of Appeals for the First District of Texas heard a somewhat similar case. In the Texas case, a couple signed a postnuptial agreement before beginning fertility treatment, in which they agreed that any extra embryos would be destroyed in the event of divorce. However, when the couple later divorced, the ex-wife said she had changed her mind and wanted to keep the embryos for possible implantation. Ultimately, the Texas court ruled against her and ruled that the contract should be enforced.
These cases are highly unusual, but they do illustrate how complex the issues can be when couples consider when considering prenuptial agreements, postnuptial agreements and property division. It’s important to talk over all the issues and options with a skilled lawyer.