A prenuptial agreement can help a couple enter marriage with a clearer understanding of their financial rights and responsibilities. Even so, many people worry that a court might disregard the agreement if the marriage later ends in divorce.
Prenups are generally enforceable in Texas when they are properly prepared and signed. Problems are more likely to arise when one person did not sign voluntarily, when the agreement was unconscionable at the time of signing and the legal requirements involving financial disclosure were not satisfied, or when the agreement includes terms that Texas law does not allow. Careful preparation can reduce uncertainty and make it more likely that the parties’ intentions will be respected.
What Is Required for a Texas Prenup?
A prenuptial agreement, also called a premarital agreement, is a written contract entered into before marriage. The agreement becomes effective when the couple marries.
A Texas prenup can explain how certain property, income, debts, business interests, retirement accounts, and other financial matters will be handled during the marriage or after a divorce. It can also address issues such as spousal maintenance, life insurance, and estate-planning arrangements.
The agreement must be in writing and signed by both people. Texas law does not require the parties to exchange money, property, or another benefit for the agreement to be enforceable.
The terms of a prenup should clearly identify the property and financial rights being addressed. Confusing definitions, incomplete property descriptions, or inconsistent provisions can create disagreements about what the couple intended.
Both People Must Sign Voluntarily
A prenup may be challenged if one person did not sign it voluntarily. A court reviewing that issue may look at the circumstances surrounding the agreement rather than focusing only on the signature itself.
For example, questions can arise if the agreement was presented shortly before the wedding and one person had little time to read it, ask questions, or request changes. Evidence of threats, deception, or severe pressure might also be relevant to whether the person’s decision to sign was voluntary.
Signing a prenup close to the wedding date does not automatically make it invalid. However, beginning the process early gives both people more time to consider the terms and understand how the agreement may affect them.
Each person can also choose to have a separate attorney review the agreement. Texas law does not automatically require independent attorneys, but separate legal review can help each person understand the proposed terms, raise questions, and make a more informed decision before signing.
Why Financial Disclosure Is Important
A prenup can change financial rights that would otherwise apply under Texas law. Before agreeing to those changes, each person should generally have a reasonable understanding of the other party’s property and financial obligations. Relevant information may include real estate holdings, bank and investment accounts, retirement benefits, business interests, valuable personal property, loans, and other significant debts. Concerns may arise when someone conceals an important asset, substantially misrepresents its value, or fails to disclose a major financial obligation.
A lack of disclosure does not automatically invalidate a Texas prenup. Under Texas law, inadequate disclosure is part of a challenge only when the agreement was unconscionable when signed and the person challenging it can also establish that, before signing, the person:
- Did not receive a fair and reasonable disclosure of the other party’s property or financial obligations;
- Did not voluntarily and expressly waive further disclosure in writing; and
- Did not have, and could not reasonably have had, adequate knowledge of the other party’s property or financial obligations.
These requirements work together. It is generally not enough to show only that an asset or debt was omitted from a disclosure schedule.
Couples often attach schedules identifying their assets and debts. Clear documentation may reduce future disagreements about what information each person received or knew before entering into the agreement.
Does a Prenup Have to Treat Both Spouses Equally?
A Texas prenup does not have to give both people the same financial benefits. Couples are permitted to make arrangements that differ from the property rules that would otherwise apply during a divorce. One person may enter the marriage with a business, investments, real estate, or family property that they want to keep separate. The agreement might explain how that property will be treated and whether the other spouse will have any rights to income, appreciation, or other value associated with it.
An unequal result does not automatically make the agreement unenforceable. A person challenging it must show more than unfavorable terms. For an unconscionability challenge, the court considers the agreement when it was signed, along with the required disclosure, waiver, and financial-knowledge factors.
Regret about the agreement or a change in circumstances after the wedding is generally not enough by itself to make a prenup unenforceable.
What Terms Might Be Improper?
A prenup can address many financial and property issues, but it cannot settle every matter that might arise during a marriage or divorce. The agreement cannot be used to adversely affect a child’s right to support. Parents also cannot use a prenup to conclusively determine future conservatorship, possession, or access arrangements. A court must address those issues under the law and the circumstances that exist when the issue arises, including the child’s best interests.
Prenuptial terms must also comply with the law and public policy. A court would not enforce a provision requiring illegal conduct. Although Texas law permits premarital agreements to address certain personal rights and obligations, those terms cannot violate public policy or a law imposing a criminal penalty.
Even a lawful provision can create problems when it is unclear. And a prenup should be coordinated with wills, trusts, beneficiary designations, business agreements, and other financial records so that those documents do not provide conflicting instructions.
How Careful Preparation Can Protect the Agreement
A prenup is more likely to provide useful protection when both people approach the process openly and allow enough time for meaningful review. The agreement should accurately identify relevant property and debts, explain how financial rights will be handled, and avoid wording that could reasonably have more than one meaning. Each person should also understand how the agreement changes the rights that otherwise apply under Texas law.
Helpful preparation may include exchanging written financial information, attaching accurate property and debt schedules, allowing time for review, documenting any waiver of further disclosure, and giving each person an opportunity to seek independent legal advice.
No contract is completely protected from a future challenge. Still, a clearly written agreement supported by voluntary signing and careful financial documentation may be better positioned to withstand a challenge than an agreement prepared hastily or with unresolved questions.
Call Bailey & Galyen With Questions About a Texas Prenup
A properly prepared prenuptial agreement can give both people greater clarity about their financial expectations before marriage. The drafting and signing process matters, and unclear language or an incomplete process may lead to disputes about whether some or all of the agreement should be enforced.
Bailey & Galyen has helped individuals and families understand Texas legal matters since 1982. If you have questions about creating, reviewing, enforcing, or challenging a prenuptial agreement, call Bailey & Galyen. The team can listen to your concerns, explain the issues that can affect whether a prenup is enforceable, and help you understand what options are available.
Frequently Asked Questions
1. Is a prenup invalid if it was signed shortly before the wedding?
Not automatically. Texas law does not establish a specific minimum waiting period before the wedding. The timing may be considered along with the surrounding circumstances, including whether financial disclosures were made and whether each person had enough time to read the agreement, ask questions, seek legal review, and make a voluntary decision.
2. Does each person need a separate attorney?
Texas law does not automatically require both people to have separate attorneys for a prenup to be valid. However, independent legal review can help each person understand the agreement and may reduce disputes about the signing process.
3. Can a Texas prenup address spousal maintenance?
A premarital agreement may include provisions that modify or eliminate spousal maintenance. Whether a particular provision is enforceable depends on the agreement’s wording and whether the agreement satisfies Texas enforceability requirements.
4. Can spouses change a prenup after the wedding?
Spouses may amend or revoke a premarital agreement after marriage. The change or revocation must be in writing and signed by both parties. A verbal agreement is not sufficient under the statutory requirements.
5. Does hiding an asset automatically invalidate a prenup?
Not necessarily. Under Texas law, inadequate disclosure is evaluated as part of a specific challenge involving an agreement that was unconscionable when signed. The court may also consider whether the person challenging the agreement waived additional disclosure in writing or already had adequate knowledge of the other person’s finances.
6. Can a prenup decide child custody or child support?
A prenup cannot adversely affect a child’s right to support. It also cannot conclusively control future conservatorship or possession decisions because a court must consider the child’s best interests when those issues arise.
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