If you’re getting married in Texas and a prenup is on your wedding checklist, chances are you’ve heard about prenups in the context of property division. But there’s another big topic couples often overlook until it’s too late: Alimony (aka “spousal support)! Most states allow prenups to cover alimony, but like most things in Texas family law, this topic is a little more nuanced. Texas prenups can waive or limit spousal maintenance, but those provisions have to pass a fairness test, and courts always retain a safety valve to protect spouses from extreme hardship. Can a prenuptial agreement in Texas really waive or specify spousal support? And, why should I include alimony in my prenup? Continue reading to find the answers to your questions and to learn more about Texas prenups.
What spousal support means in Texas
Before diving into what a prenup can do, it helps to understand the different types of support Texas recognizes. Many people use “spousal support,” “spousal maintenance,” and “alimony” interchangeably, but Texas law makes some important distinctions. Spousal maintenance is court-ordered support after a divorce, available only in specific circumstances, such as when a spouse has a disability or cannot meet basic needs after a long marriage. We’ll take a closer look at spousal maintenance in the next paragraph. Contractual alimony, on the other hand, is support agreed upon voluntarily between spouses, often in a divorce settlement. A prenup can set the rules for both, defining support or waiving it entirely.
Texas is conservative when awarding spousal maintenance
Texas is widely considered one of the most conservative states in the country when it comes to awarding spousal maintenance, and that reputation is well-earned. Unlike many other states where alimony can be granted more liberally, Texas law tightly restricts when a court can order post-divorce support. Under the Texas Family Code, spousal maintenance is only available in very specific circumstances, such as when the marriage lasted at least ten years and one spouse cannot meet their minimum reasonable needs, or when a spouse is disabled or caring for a disabled child. Even then, the amount and duration are capped. Support is generally limited to the lesser of $5,000 a month or 20% of the paying spouse’s monthly income, and it rarely lasts more than a few years.
For couples, this means two things: higher-earning spouses are less likely to face open-ended support obligations, and lower-earning spouses can’t count on the court to provide significant long-term financial help. Knowing this upfront can shape how couples approach a prenup. Many use the agreement to create their own support terms that are more generous or predictable than what Texas law would otherwise allow.
The legal framework for spousal support in prenups
Texas prenuptial agreements are governed by the Texas Uniform Premarital Agreement Act, which is found in the Texas Family Code. Section 4.003(a)(4) of the Family Code explicitly says that a prenup can modify or eliminate spousal support. In other words, Texas law gives couples a great deal of freedom to decide ahead of time whether one spouse will be entitled to support after divorce, what amount that support might be, or whether it will be waived altogether.
This contractual freedom, however, is not unlimited. Section 4.006 of the Texas Family Code introduces an important safeguard. The statute states that courts will not enforce a prenup, or parts of it, if the agreement was unconscionable when signed and if the disadvantaged spouse did not receive fair disclosure of the other spouse’s finances. That means prenups involving spousal support must be entered into with full transparency, and they cannot leave one spouse destitute.
How courts evaluate fairness
Texas courts respect the principle that couples should be able to set their own financial terms, but they also have a duty to prevent extreme unfairness. A waiver of spousal support will generally be upheld if both spouses had full knowledge of each other’s financial situations and entered the agreement voluntarily. However, if enforcing the waiver would leave one spouse unable to meet basic needs, sometimes referred to as “minimum reasonable needs,” a court can override the waiver and order support despite what the prenup says.
Case law illustrates this balance. In the 1986 Texas case, Williams v. Williams, a Texas appellate court upheld a prenup waiving spousal support, emphasizing that the agreement was made freely and with full disclosure. But courts in later cases have signaled that they will step in if a waiver would produce an unjust result, such as when one spouse suffers a disability or experiences a dramatic change in circumstances after the prenup is signed that would make enforcement severely unfair (i.e., unconscionable).
Why couples address spousal support in prenups
For many couples, including spousal support provisions in a prenup creates certainty and prevents future conflict. Agreeing ahead of time on whether support will be paid, and if so, how much and for how long, can take a major stressor off the table if the marriage ends. It’s also a way to protect higher earners from unpredictable court awards while still allowing flexibility to provide for a lower-earning spouse in a way that feels fair to both parties. Prenups can also define triggers for support, such as the length of the marriage or the birth of children. For example, a couple might agree that support will only be provided if the marriage lasts more than five years, or that it will be capped at a certain monthly amount. These negotiated terms can be far more tailored than what a court might impose.
Drafting considerations to make support clauses enforceable
If you’re considering addressing spousal support in a Texas prenup, there are several practical steps that make these provisions stronger. Full and honest financial disclosure is non-negotiable. Both parties need to lay out their income, assets, and debts. Independent legal counsel for each spouse is also highly recommended, as it reduces claims of coercion or misunderstanding later.
Timing matters too. Signing a prenup days before the wedding raises red flags and makes challenges more likely. Finally, avoid drafting terms that would leave one spouse with nothing. Courts are far more likely to enforce reasonable provisions than extreme ones. This should go without saying, but if you’re planning to share your life with someone, you should have their best interest in mind from the beginning.
Why addressing support upfront matters in Texas
Skipping the prenup conversation altogether is an option, but it’s a costly one. Texas is one of nine community property states. This means that courts will distribute marital property in a divorce equally. This doesn’t always mean 50/50 division, but oftentimes it does. What property is considered marital property? In Texas, there is a presumption that all assets acquired or earned during marriage are marital property, regardless of whose name is on the title or who earned the asset. And, it’s important to note that courts sometimes classify separate property as marital property if it has inextricably mixed with the marital estate. Separate property generally includes anything you earned prior to marriage, inheritance, or money awarded from a personal injury claim. How you treat your separate property during your marriage can change the classification of your separate assets into marital assets, leaving them vulnerable to equal distribution upon divorce.
Community property rules and commingling can create surprises for couples in Texas who don’t realize that almost everything acquired during marriage, including earnings, belongs to both spouses. On top of that, spousal maintenance disputes can quickly become one of the most contentious and expensive parts of divorce litigation. Couples who outline expectations for spousal support in a prenup sidestep many of these conflicts and enter marriage with clarity, peace of mind, and a roadmap if needed in the future.
Final thoughts on spousal support provisions in Texas prenups
Texas courts give a great deal of respect to contracts entered into voluntarily, and therefore, they generally uphold prenuptial agreements. Texas also gives couples a lot of flexibility to address spousal support in their prenups. But that flexibility comes with responsibility. Waivers and provisions must be transparent, fair, and thoughtfully drafted if they’re going to stand up in court. And, don’t forget that full and fair financial disclosure is required. For couples entering marriage, having important financial conversations early will encourage transparency and honest communication throughout the relationship. Sit down with your fiancé and talk about how a prenup could protect both of your financial futures while also reducing potential future conflict.
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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