Prenuptial and postnuptial agreements are typically binding contracts that guide how specific financial terms will be resolved in the event of a divorce. However, some circumstances can render prenuptial agreements void. One such circumstance is coercion. A recent Texas case and opinion from the court of appeals succinctly highlights this issue.
If you have questions or concerns about a postnuptial agreement or have been asked to sign one, an experienced Killeen family law attorney can help.
The only difference between prenuptial agreements and postnuptial agreements is when they are created and executed. Both types of agreements are common in second marriages when one or both spouses already have children and want to protect their inheritance rights.
Prenuptial agreements are created prior to marriage and are executed – or go into effect – only upon marriage. If the couple does not go through with the marriage, the prenuptial agreement will have no effect.
A postnuptial agreement, on the other hand, is created while the couple is married, and it goes into effect once it is signed by both spouses.
What Can and Cannot Be Addressed in a Postnup
Both postnuptial and prenuptial agreements can be effective tools to define separate assets clearly, delineate the division of marital property, and address the issue of alimony in the event of a divorce.
Child custody must be addressed in terms of the children’s best interests at the time, which means this divorce term is off-limits when it comes to both prenups and postnups. Further, only if the child support terms exceed those required by the State of Texas can they be addressed in a prenuptial or postnuptial agreement.
Postnuptial Agreement Requirements
In order for a postnuptial or prenuptial agreement to be legally binding, the following basic requirements must be met:
Both spouses must have signed the agreement voluntarily, which means that neither was under duress at the time of signing or was coerced into signing.
The spouses must sign a prenuptial agreement before the marriage, but they may enter a postnuptial agreement at any time during the marriage.
The terms of the contract cannot be unconscionable, which means they cannot be obviously lopsided – creating a hardship for one spouse or the other.
Each spouse’s assets and debts must be fully disclosed – unless either spouse waves this right to disclosure of information in writing.
When these requirements are adhered to, the terms of the prenup or postnup are generally upheld by Texas courts.
The Case at Hand
For a practical example of determining the validity of a prenup or postnup, you can turn to this divorce case. In this case, the matter of coercion and a forged signature come into play. The couple in question married in the spring of 2000 with a prenuptial agreement that was designed to “help” the wife while protecting the husband from her IRS debt.
On the issue of their marital property, the agreement read, “It is the parties’ intent and desire that a community property estate will be created during their marriage.” The agreement went on to list six categories of assets that would comprise the marital estate. Each spouse put their initials on each page, signed the document, and had the signatures notarized.
The couple married on April 8, 2000. The next month, they ratified (or officially changed) their prenuptial agreement. They included a Property Agreement Between Spouses, which changed the prenuptial agreement but didn’t alter their prior agreement regarding marital property. They initialed, signed, and notarized the document just like they did with the original prenup.
Property Agreements Between Spouses can be valuable tools in protecting your assets. Contact a Killeen family lawyer for help drafting an agreement of this nature.
A Partition and Exchange Agreement
In 2009, the couple had a financial dispute, and the husband drafted a Partition and Exchange Agreement (PEA). This contract held that no community estate would arise during the rest of the marriage (in direct contrast to the original prenup and the ratification made the first month after marriage). The husband initialed, signed, and notarized this postnuptial agreement.
The wife filed for divorce in 2016, seeking to enforce the prenuptial agreement. The husband answered with a counter-petition for divorce in which he sought to enforce both the prenuptial and the postnuptial agreement – the PEA. The wife made the following claims in response:
That the postnuptial agreement was fraudulent
That her husband forged her name on the postnuptial agreement
She also moved to exclude the husband’s handwriting expert witness.
The couple resolved their child custody arrangements outside of court, and neither spouse disputed the validity of the original prenuptial agreement or the Property Agreement Between Spouses. The only remaining issue to be resolved in court was the matter of the PEA’s validity and enforceability. Both spouses testified at trial.
The Husband’s Testimony
The husband testified that he signed the PEA postnuptial agreement and had it notarized on March 2, 2009. He told the court that, on the same day, he met his wife for lunch and witnessed her angrily initial and sign the entire PEA in his truck. He maintained that there was no forgery involved.
The Wife’s Testimony
The wife testified that, while they had discussed a PEA in 2009, she had requested changes to his draft. When asked what changes she’d requested, she stated, “I wanted to be put on the deed for our properties, and also I wanted a morals clause put into the agreement because he was constantly gone from the house, and he was usually at a bar but mostly strip clubs.”
Ultimately, however, the PEA did not contain an agreement to put the wife’s name on any property, did not indicate joint ownership of any property, and did not include a morality clause. While the wife did remember being asked to sign the document in her husband’s car, she also clearly remembered refusing to do so.
The Handwriting Expert’s Testimony
The husband hired a handwriting expert who provided deposition testimony and testified in court. The man testified as to his prior experience, his qualifications, the methodology he employed, and his expert opinion that the wife had signed the PEA.
The wife’s counsel questioned the expert on voir dire – when an expert witness’s expertise is examined prior to testimony. Ultimately, the wife’s counsel objected to the expert witness for the following reasons:
His qualifications appeared questionable.
His credibility appeared questionable.
His testimony did not seem reliable.
The trial court proceeded to grant the wife’s motion to exclude the expert witness’s testimony. From here, the court denied the validity and enforceability of the PEA – or postnuptial agreement – based on the fact that the wife did not sign it. An appeal followed.
Expert witnesses can complicate divorce proceedings greatly. As such, you should always work closely with a skilled Killeen divorce lawyer when an expert witness is involved.
The husband brought five primary issues for the appeal court to consider. He made all of the following claims in his argument:
That the trial court erred and abused its power of discretion when it excluded the testimony of the handwriting expert based on his alleged lack of qualifications
That the trial court erred and abused its power of discretion when it excluded the testimony of the handwriting expert based on his alleged lack of reliability
That the trial court erred in determining that the postnup was not valid and enforceable based on its finding that the wife did not sign it
That the trial court erred in determining that the wife had not signed the postnup
That the trial court erred in finding the postnup invalid and unenforceable based on the wife signing involuntarily or based on unconscionability – because the wife had not properly pleaded these defenses.
Examining the Issues Point by Point
Each of the primary issues was examined carefully by the court.
Issues One and Two: Lack of Qualifications and Reliability
The court of appeals had to consider whether or not the handwriting expert was qualified to testify about handwriting authentication on the postnuptial agreement.
Those who purport to be experts must actually have expertise in the subject on which they offer an opinion. General experience in any given specialized field does not make a witness an expert.
While the handwriting expert in this case had a range of experience that focused on handwriting and forgery, his degrees included a B.A. in speech education and an M.Ed. in counseling and guidance, with very little formal education in document examination. Further, the man was not certified by any of the following authorities:
The American Board of Forensic Documentation Examiners
The American Society of Questioned Document Examiners
The Board of Forensic Document Examiners
The Association of Forensic Document Examiners
The National Association of Document Examiners
Further, the man testified that the handwriting university where he taught and served as the dean was operated by his son and was not accredited. Ultimately, the court did not reject the prosecution’s classification of the witness as a charlatan.
This evaluation extended to issue two, which addresses the matter of the expert’s reliability. The court of appeals found that even under minimum standards of reliability, the issues raised in relation to this so-called expert’s qualifications called the reliability of any testimony he could offer squarely into doubt.
Issues Three and Four: The PEA
The next two issues focus on the PEA – or the postnuptial agreement regarding the partition and exchange of assets.
PEAs allow spouses to partition or exchange all or part of the community property as they both see fit. This agreement can include existing assets as well as assets that are acquired over time. Any asset or interest in an asset that is transferred to a spouse via a valid PEA becomes that spouse's separate property. However, a PEA that was not signed voluntarily is not enforceable.
The Husband’s Testimony
The husband testified that he watched his wife initial each page of and sign the PEA. Further, since his signature was already notarized, he believed that rendered the entire document notarized.
The Wife’s Testimony
The wife shared that she remembered the day in question very well because her husband had suggested lunch, which was a rarity. She met him at his office, and they left in his truck.
At lunch, her husband proceeded to tell her that he was going to have her arrested for fraud – in relation to credit card concerns they were facing – if she refused to sign the PEA, which was in the truck. He continued to harangue her into signing when they got back in the truck, but, according to the wife, she refused to sign, got out of the truck, and threw the document at him.
He left the document with her to sign another time – when he’d gone out for the evening – but instead of signing it, she’d burned it in the backyard – relaying to the court, “I was not happy.”
The name of the wife’s divorce attorney was printed on the PEA document, but neither spouse admitted to writing it there. The wife contended that the attorney hadn’t done any work for her since their original prenuptial agreement and ratification in 2000.
The Court of Appeals’ Finding
The court of appeals found that the trial court had sufficient evidence to credibly confirm that the wife did not sign the PEA. As such, the trial court had sufficient evidence to exercise its discretion in relation to finding the PEA neither valid nor enforceable, which also took care of the fifth and final issue.
Discuss Your Case with an Experienced Killeen Family Law Attorney Today
If you have an issue with a prenup or postnup or are considering having one drafted, Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a seasoned family law attorney with a vast array of experience crafting beneficial and binding prenuptial and postnuptial agreements and successfully guiding complex cases involving marital agreements toward advantageous outcomes for his clients. Learn more by contacting us online or calling us at (254) 781-4222 today.