Texas Prenuptial Agreement
Howdy! Below we have listed the major statutes and phrases you’ll need to understand in Texas so you can get your prenup done and get back to planning your wedding!
Texas Prenuptial Agreements
A prenuptial agreement is called a “premarital agreement” in Texas and is defined as an agreement between two parties who plan to marry and would like to clarify what should happen to property of the marriage in the event of divorce or separation. A premarital agreement in Texas is not effective until the marriage takes place.
What to consider in a Texas Prenup?
For a “lone star state” prenup to be considered for enforcement in a Texas courthouse, it must be drafted under specific guidelines that include:
- A written contract
- Lawful terms
- Signatures from both parties (HelloPrenup suggests initializing each page!)
- Signed voluntarily (without being under duress, intimidation, deceit, etc.)
- Fair and reasonable disclosure of finances
- If you have questions on your specific situation or other legal questions, you should contact a licensed attorney in your state.
What to exclude from your Texas prenup
Your prenup could be a risk if you include any of the following provisions:
- Child custody or child support
- Excluding the right to counsel
- Incentive to commit illegal acts
- Incentive for divorce
- Unfair, unjust, or deceptive terms
- Relationship terms (rules for the relationship that are not monetary or involve rights related to property)
Prenup terms to know
We curated something really special. This prenup encyclopedia simplifies each term so ya’ll can get through any legal phrases without any sweat.
Premarital Agreement Statute
What can you include?
In Texas, per the Texas Family Code, and the Texas Uniform Premarital Agreement Act, Sec. 4.003, parties to a premarital agreement may include the following in their agreement:
- the rights and obligations in property whenever and wherever acquired or located;
- the right to control or manage property incl: buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of;
- the disposition of property on separation, marital dissolution, death, or any other event;
- modifying or eliminating spousal support;
- the ownership rights in and disposition of the death benefit from a life insurance policy;
- the choice of law governing this agreement; and
- any other matter, including their personal rights and obligations that are not in violation of public policy or criminal.
***The right of a child to support may not be adversely affected by a premarital agreement.
Please note the above text from the Texas Family Code has been edited for brevity.
What could render your Premarital Agreement unenforceable?
Per the Texas Family Code, and the Texas Uniform Premarital Agreement Act, Sec. 4.105, if a party seeking to defeat the premarital agreement (the party against whom enforcement is sought) can prove the following, the agreement may be deemed unenforceable in whole or in part:
(1) not signed voluntarily; or
(2) the agreement was unconscionable when it was signed because that party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party OR did not waive,their right to disclosure of the property or financial obligations *in writing* and did not have adequate knowledge of the property or financial obligations of the other party.
If you have other questions about enforcement of a prenuptial agreement in Texas, you should contact a licensed attorney.
Official term for property “acquired during the marriage”
Texas is one of nine states in the United States that operates under a community property theory. In general, this means that any property acquired during their marriage is equally owned by both spouses. In addition, Property owned by either spouse during the divorce process or on dissolution of marriage is presumed to be community property. Now, this is why you should consider a prenup!
Per the Texas Family Code, Sec. 3.001, Separate Property is defined as
- property owned or claimed by the spouse before marriage;
- property acquired by the spouse during marriage by gift, devise, or descent; and
- the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Spousal Maintenance Statute
Spousal Support Upon Dissolution or Legal Separation
Per the Texas Family Code, Sec. 8.052, the court may consider the following factors in determining the nature, amount, duration, and manner of support.
- ability to meet minimum reasonable needs independently, considering that spouse’s financial resources on dissolution
- education and employability
- length of the marriage
- the age, employment history, earning ability, and physical and emotional health
- the effect of maintenance on each spouse’s ability to provide for that spouse’s needs while providing child support payments or maintenance, if applicable
- acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property
- the contribution by one spouse to the education, training, or increased earning power of the other spouse
- property brought into the marriage
- non-monetary contributions to the marriage
- marital misconduct
- history or pattern of family violence (defined here: 71.004)
It’s crucial to understand that there are many different circumstances that can come into play if a Texan couple decides to divorce without a prenup. By clarifying maintenance in your prenup prior to divorce or separation, you and yours can prevent a court from defaulting to guidelines. If you have questions about how spousal support would be calculated, or would apply in your specific situation in Texas, you should contact a licensed attorney.
Asset / Debt Statute
General Provisions for “award of marital property”
Texas is one of the only nine states in the country that is considered a “community property” state. This generally means that any property that is acquired by either both or one of the parties of the marriage is considered “community” or “martial” property (unless otherwise stated in a prenuptial agreement).
>>For the entire fine print, review Citation: TX Fam Code §7
Official term used to refer to “grounds for divorce”
Getting a “dissolution of marriage” (also referred to simply as a “divorce”) calls for “grounds for divorce” without either party having to provide any reason as to why either party should want to end the marriage or legally separate.
Texas “Grounds for Annulment”
There are many different reasons why a Texan couple would look for an annulment. To make sure that you are familiar, browse through the entire list here.
The Texas Legislature revised the Texas Family Code in 1993, excluding common-law defenses to prenups entered into on or after September 1, 1993. In English, please? This means that post September 1, 1993, “involuntary execution” and “unconscionability” are the only reasons for challenging the enforcement of a Premarital Agreement in the lone star state.
A Texas Prenuptial Agreement must be voluntarily executed.
Per Tex. Fam. Code §4.006(a)(1) a Premarital Agreement is not enforceable if the contesting party can prove that they did not execute the agreement voluntarily. However, the Fourteenth Court of Appeals (Houston) stated that a party is supposed to know the contents of a contract that he or she has signed and has a duty to defend themselves by reading a document before signing it. Marsh v. Marsh, 949 S.W.2d Thus, an agreement that is “unfair” because it disproportionately favors one party over another is not necessarily unconscionable. More on the Marsh case, below.
Q&A and Relevant Cases
How soon before the wedding must a Texas prenup be signed? Does signing a prenup too close to the wedding make the agreement unconscionable?
Texas law places the burden on the challenging party to show why the Prenuptial Agreement should not be enforced. In Williams v. Williams, as detailed below, signing an agreement one day prior to marriage is not enough to render the agreement unenforceable.
Summary: Wife, Linda and Husband, Louis were married April 17, 1982, in Boerne, Texas. The parties had spent significant time together and had traveled together before marrying. Both parties had children from former marriages. During the late afternoon on the day before the couple’s wedding, Louis presented Linda with a premarital agreement, also known as an “Agreement in contemplation of marriage.” Louis reminded Linda that he had discussed this agreement with her prior, and per their discussions was sure she would have no objection. Linda indicated she did not like the agreement, but because approximately twenty of their friends and family had been invited to the wedding and were set to arrive the next day, she agreed to sign it. Linda and Louis went to a bank and had their signatures to the agreement notarized.
To make a long story short: According to the appeals court in Williams, the fact that the Premarital Agreement was signed one day before the couple’s wedding did not render the agreement unconscionable. The Texas Appeals Court held that a Prenuptial Agreement signed on the day of the marriage was not attained through fraud, duress or overreaching in this case. The court reasoned that the wife had business experience and the couple had discussed the terms of the agreement for six months prior. The prenup was upheld.
Case: Moore v. Moore, 383 S.W.3d Summary: In the case of Moore, Wife presented evidence that before she married Husband, he misrepresented his financial situation and claimed he wanted her to sign a Premarital Agreement to protect her from “loans, liens, and lawsuits.” Husband first attempted to use his own lawyer to assist them to write the agreement in a “collaborative effort.” Husband then suggested Wife retain an attorney and agreed to pay the cost, but thereafter rejected any attorney wife identified for representation, and rather directed her to hire an attorney of his choosing. He then thwarted efforts by Wife’s attorney to review the Prenuptial Agreement draft until just hours before the couple’s wedding. The Prenuptial Agreement presented to Wife required her to verify Husband had provided full disclosure of the nature, extent, and value of his assets, and also required her to waive any further disclosure. Wife was unable to reach her attorney before signing. The Court held that this agreement was involuntary and therefore unenforceable due to the facts at hand.
Does not having an attorney render the Prenuptial Agreement unenforceable?
Summary: In Marsh, the court ruled that the fact that Husband was not represented by an attorney did not mean that the agreement was procured by fraud, duress or overreaching. The Husband had opted not to hire counsel despite it being recommended that he do so.
Does the “unfairness” of the terms of a Texas Premarital Agreement weigh into whether it is considered “unconscionable?”
Summary: The Court in Chiles held that the one-sided nature of a Prenuptial Agreement does not equal unconscionability, and that even though an agreement may be disproportionate, unfairness is not material to the enforceability of the agreement.
Is inadequate financial disclosure enough to make a Texas prenup unconscionable?
Summary: According to the Marsh case, if the court determines that a Premarital Agreement is unconscionable, the contesting party must also prove that, before signing the agreement, they were not provided fair and reasonable disclosure of the finances, property or financial obligations of the other party. This disclosure is required in Tex. Fam. Code §4.006(a)(2)(A).
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