Updated on September 11, 2023
A prenuptial agreement – also known as a “prenup” – is essentially a contract created between two people before they get married. Like any other contract, it must comply with all applicable state laws in order to be valid and enforceable.
If a prenup does not comply with applicable statutes, a Texas court may deem the agreement unenforceable. For this reason, if you are facing a divorce, it is critical to seek help from a Georgetown divorce attorney to help you determine if your prenuptial agreement will hold up.
What Prenuptial Agreements Are All About
Prenuptial agreements are binding legal contracts that are drawn up prior to marriage and are executed (go into effect) upon marriage. These contracts can be personalized and may be as simple or as complicated as each couple desires.
Prior to marriage, even a signed prenuptial agreement has no bearing on anything (other than the fact that it will go into effect if and when you do marry). Further, your prenuptial agreement will have no bearing on your marriage – and cannot be used as a bludgeon or any other kind of leverage. Prenuptial agreements only come into play if you need a divorce or if one of you dies.
While prenuptial agreements tend to get a bad rap, they can actually play a very useful financial role in your marriage:
Protecting the inheritance of a child born of another marriage in the event of your death
Helping you and your spouse avoid the extremely high cost of a contentious divorce in which you battle out the fair division of your assets
Protecting both of you from the other’s debts
Protecting family assets that are currently owned by either of you (or that you are likely to inherit in the future)
Protecting a family business owned by either of you (or a business that either of you started outside of marriage)
Performing multiple other financial protections
Finally, having a prenuptial agreement in place is in no way a symbol that your marriage is likely to end in divorce – nor does it make divorce more probable.
Can You Challenge Your Prenup?
If you’re facing a divorce, a prenuptial agreement can seem like an insurmountable barrier to protecting your financial rights. However, it may help to know that some prenuptial agreements can be challenged.
Use the following questions as a guide in ascertaining if you will be able to fight your prenup:
Is the prenup mutually beneficial, or does it feel one-sided?
What is it that you – together or separately – are trying to protect with the prenup?
How familiar were you with your spouse’s finances at the time you signed the prenup?
How familiar were you with Texas property law at the time you signed the prenup?
Does the prenup serve you personally?
If any of these questions make you feel you have been treated unfairly, you may have recourse to fight your prenuptial agreement. Contact a Georgetown divorce attorney for help invalidating your unjust prenup.
Why Texas Courts May Deem a Prenuptial Agreement Invalid
Like many other states, Texas follows the Uniform Premarital Agreement Act, also known as UPAA, which provides for the circumstances in which prenups are enforceable. If you are trying to break your prenuptial agreement, it is important to know why Texas courts may find a prenuptial agreement invalid under state law.
Below are the seven most common reasons a Texas court may throw out a prenuptial agreement.
1. The Prenup Was Not Signed Before the Marriage
The word “prenuptial” has the prefix “pre” for a reason. Under Texas law, a prenuptial agreement must be drafted and signed prior to the marriage. Even if the parties sign a prenup immediately after the wedding, it is still likely to be deemed invalid because it was signed after the marriage.
A common pitfall for many couples who want to create a legally binding prenuptial agreement is that they may be unknowingly married when signing the agreement. It may be possible because Texas recognizes common-law marriage.
In other words, if you begin cohabitating with your soon-to-be spouse before the marriage and your relationship meets other criteria of a common-law marriage, you may be considered legally married before your wedding.
2. The Prenup Was Unconscionable When Drafted
For a prenuptial agreement to be valid and enforceable, the agreement cannot be unconscionable when drafted and signed by the parties. The term “unconscionable” means that the terms of the contract are unfair or oppressive to one party.
What qualifies as unconscionable is determined on a case-by-case basis. A prenup – just like any contract – can be voided when it is unjust or extremely one-sided in favor of one party.
However, when attempting to invalidate a prenup on the grounds of “unconscionability,” the oppressed party may be required to prove other elements to void the contract.
If you are seeking to invalidate a prenuptial agreement on these grounds, speak with a Georgetown divorce attorney to help you prove that the contract is unconscionable.
3. The Prenup Was Signed Before the Parties Had Knowledge of Finances
Under Texas law, both parties must have knowledge of each other’s finances and assets prior to signing a prenuptial agreement.
A prenup may be deemed invalid if the agreement was signed before both parties knew about each other’s finances and assets. For example, if your fiancé failed to disclose the fact that he or she owns an apartment in another city at the time of creating and signing a prenuptial agreement, the court may invalidate the prenup.
Full disclosure of finances and assets includes the broader picture – not just the financial state at the moment of marriage. For example, if one of you is expected to inherit a considerable
amount of money, that would very likely need to be addressed in the prenuptial agreement
Full financial disclosure is paramount, but one or both of you may waive the right to fair and reasonable disclosure prior to signing. Such a waiver must be made expressly, voluntarily, and in writing. However, signing such a document is ill-advised.
4. The Prenup Was Not Signed Voluntarily
Many prenuptial agreements are deemed invalid because one of the parties did not sign the contract voluntarily. Texas Family Code § 4.006 requires both parties to a prenup to enter into the agreement voluntarily. Otherwise, the agreement will be deemed invalid.
If one party does not willingly sign a prenup, the court will most likely invalidate the agreement. This includes when one party changes the terms after the other has already signed the agreement. However, the following arguments may not be enough to prove that the contract was signed involuntarily:
You did not have a chance to read the agreement in full before signing it.
Your spouse would not agree to marry you unless you signed the agreement.
The free will requirement usually means that both of you used your own lawyer to advise you and make sure your rights were protected. If both parties did not have legal representation, a court may invalidate the agreement. Courts can also invalidate prenups if both parties were not given enough time to consider the agreement and its implications fully.
Anything less than this standard can amount to duress, which can lead to invalidation.
Typically, the party seeking to invalidate a prenuptial agreement on the grounds of involuntariness must demonstrate proof of duress or undue influence.
Independent Legal Counsel
While not having your own legal counsel will not necessarily render your prenuptial agreement unenforceable, having legal counsel is highly indicative of voluntariness – and is usually the most critical indicator supporting voluntariness in a prenuptial agreement (if challenged).
When it comes to prenuptial agreements, the best practice is for both parties to actively participate in the creation of the contract (with the guidance of your respective attorneys). Even if one of you signs the contract against the advice of counsel, the fact remains that you had the opportunity to obtain the advice of independent legal counsel, which reinforces voluntariness.
5. The Prenup Was Not Written Like a Contract
To be deemed valid, a prenuptial agreement must be in writing and written like a contract. It must also be signed by both parties and must include all appropriate and necessary disclosures. The agreement must also avoid ambiguous or unclear language that renders the contract unenforceable.
If you didn’t enlist the help of an experienced attorney to help you write your prenuptial agreement, the agreement might be invalid in accordance with contract law.
6. The Prenup Was Not in Writing
A court will invalidate your prenuptial agreement if it is not in writing. Texas law requires prenups to be in writing and signed by both parties to be considered valid and legally binding.
An oral prenuptial agreement is not legally enforceable even if one of the parties recorded the conversation. Still, just because your prenuptial agreement is in writing is no guarantee that the prenup is enforceable and valid under Texas law.
7. The Prenup Addresses Issues outside of Its Jurisdiction
A prenup cannot be used to minimize one’s child support obligations (but it can be used to enforce an amount greater than that required by the Texas Family Code). While a prenup can address visitation issues, the court will not let these pass without first establishing that they are in the best interests of the children involved.
A prenup cannot be used as a tool to break or bypass existing laws.
Frequently Asked Questions about Prenuptial Agreements
How Does the Division of Marital Property Work in Texas?
In the event of divorce, all those assets that you acquired over the course of your marriage, which are considered marital property – regardless of who purchased the item or whose name is attached – must be divided between you and your divorcing spouse equitably. Equitably means fairly when a variety of relevant details are factored in. The only exceptions when it comes to assets you obtain while married include the following assets:
Gifts made in the name of one spouse alone
Inheritances made in one spouse’s name alone
Separate purchases one spouse makes using his or her distinctly separate assets
Those assets that either of you brings into the marriage with you are considered separate property, but it is very easy for separate property to intermingle with marital property and to, thus, dissolve or diminish the separate nature of the asset.
Premarital agreements are often used to help delineate the separate nature of specific assets that either spouse brings into the marriage with him or her. If you’re not sure what property will be considered separate in your divorce, contact a skilled Georgetown divorce lawyer to discuss your case.
Won’t Our Assets Be Divided 50/50 If We Divorce?
Many people think they do not need a prenuptial agreement because they believe their assets will be divided between them equally in the event of a divorce, but this is not necessarily the case. In fact, your assets will be divided in a manner that is deemed fair when all the following factors are taken into consideration:
The length of the marriage
The overall size of your marital estate
The amount of separate property owned by each of you
You and your spouse’s mental and physical health
Any considerable age discrepancy between the two of you
Any disparity in earning capacity between the two of you
Whether fault played a role in the dissolution of your marriage
Any future inheritances expected by either of you
The tax implications for both of you
Attorney fees and the cost of divorce litigation
The unique nature of any assets involved
Any other factors that the court deems relevant
In other words, the equitable division of your marital assets can prove exceptionally unpredictable if you have no prenuptial agreement in place or if your prenuptial agreement is invalidated.
Will My Prenup Be Publicly Available?
Prenuptial agreements are private matters. Your prenuptial agreement is not public in nature. However, your divorce records are generally accessible to the public.
What Constitutes Full Financial Disclosure?
Full financial disclosure will look different for everyone (depending upon the kinds of assets you have and the kinds of debt you carry), but the basics include the following financial information:
Both parties’ income tax returns
Both parties’ bank statements
Information about both parties’ real estate holdings and any mortgages
A list of both parties’ cars and other vehicles (including recreational vehicles)
Both parties’ retirement accounts
Both parties’ outstanding loans and debts
If one or both of you own a business, have high assets, or have complicated finances generally, it tends to make the matter that much more challenging.
Are Prenups Enforceable in Other States?
Every state has its own laws addressing the enforcement and validity of premarital agreements. The following factors may determine which state’s laws a court will apply:
Where the marriage took place
Where the parties live during the marriage
What law the agreement says to apply
Frequently, soon-to-be-married couples in this situation will research the laws of the state that will be most beneficial in enforcing the terms of the prenup. In general, most family courts, no matter the state, will be concerned with how fair the prenup is and whether it is enforceable in the state in which it was created.
If you are unsure how your prenuptial agreement will affect your Texas divorce, contact a knowledgeable Georgetown divorce attorney to find answers to your questions.
Are Foreign Prenups Enforceable in Texas?
It is unwise to assume that a prenup that is currently valid in the state or country of the couple’s marriage or residence will be equally valid elsewhere. While many divorcing Texas couples have prenups from other states, some have prenups that were drafted in other countries. Foreign premarital agreements can add an extra layer of complexity to reaching a divorce settlement.
Laws regarding marriages and prenups vary greatly around the world, as do the attitudes of courts who must determine their fate. How foreign prenups are dealt with changes significantly from one country to the next. With the exception of the European Union, there are generally no international laws governing how local laws should apply to international personal relationships.
In determining how foreign prenups should be enforced, Texas courts will likely follow recent case law, comparing the divorce and prenup laws of the originating country to those in Texas. In one recent divorce case involving a foreign prenup, the Eighth Court of Appeals reversed the lower court's decision to disregard a wealthy couple's foreign prenup from Chihuahua, Mexico.
The Court of Appeals found that Chihuahua and Texas laws regarding premarital agreements are quite similar. Both categorize property as community or separate. Both also allow future spouses flexibility to determine how the property they might acquire during the marriage is categorized. As such, the Court of Appeals held that it is congruent with the public policy of Texas to recognize and enforce a prenup created in Chihuahua.
Get a Free Consultation with a Georgetown Divorce Attorney
If you are facing a divorce involving a prenuptial agreement, you will need the skilled guidance of a Georgetown divorce attorney. He or she will help you determine if your prenup is valid and how it may affect the outcome of your divorce.