The all-inclusiveTexas prenup

The controlling statute & cases

What law governs prenups in Texas?

Texas prenuptial agreements are governed by statutes (Tex. Fam. Code §§ 4.001–4.010) and case law (See Marsh v. Marsh, 949 S.W.2d 734 (1997); Matter of Marriage of Sauls and Worley, 648 S.W.3d 359 (2021)). Texas' prenup statutes lay out the requirements and enforcement standards for a prenuptial agreement, which largely mimics the rules laid out by the UPAA, including requiring prenups to be in writing and signed. Case law helps further interpret these statutes and adds more color to how a prenup may be thrown out. Texas case law explains that courts may scrutinize issues such as financial disclosure, voluntariness, and unconscionability of the agreement.

Is Texas a UPAA state?

Yes, Texas is one of the 28 (and counting) states that have adopted, in whole or in part, the Uniform Premarital Agreement Act (UPAA). The UPAA is a uniform law that attempts to standardize prenup laws across the states. This helps create uniformity across states and makes cross-border prenups simpler to enforce. Texas adopted the UPAA in 1997 and only made a few changes. One of the changes made to their version of the UPAA was removing the rule that allowed courts to change spousal support waivers if one spouse later needed public assistance (Tex. Fam. Code § 4.006).

Requirements for a Texas prenup

What are the requirements for a prenup in Texas?

The requirements for creating and enforcing a prenup in Texas can be found in Tex. Fam. Code § 4.002 and § 4.006. These requirements include putting the agreement in writing, ensuring both parties sign it, ensuring fair and reasonable financial disclosure, ensuring the agreement is voluntary, and ensuring the agreement is conscionable. Texas courts may also scrutinize the agreement for fairness, voluntariness of the parties, and adequate disclosure. However, Texas law favors prenups and places a presumption of enforceability on the document, which means a Texas court will enforce a prenup unless the challenging party can prove there is a valid legal reason not to. (Marsh v. Marsh, 949 S.W.2d 734 (1997)).

Requirements:

• In writing
• Signed by both parties
• Fair and reasonable financial disclosure
• Entered into voluntarily
• Not unconscionable

Does a prenup need to be notarized in Texas?

No, prenuptial agreements in Texas do not need to be notarized to be considered valid and enforceable. However, many legal practitioners in the state recommend notarization anyway, as it is a relatively affordable and simple way to add a layer of protection to the agreement. Notarization is the simple act of signing the prenup in front of a notary public, and then the notary public applies their seal on the document. This lets a court know that the document was actually signed by each party (not forged), and the parties knew what they were signing was a prenup.

Do both parties need a lawyer for a prenup in Texas?

No, having an attorney is not required for a valid prenup in Texas (Matter of Marriage of Sauls and Worley, 648 S.W.3d 359 (2021)). Having independent legal counsel may, however, come into play if one party argues that they did not enter into the agreement voluntarily. For example, if one spouse argues they didn't sign the agreement voluntarily but had independent legal counsel, without other factors, a court is unlikely to deem it involuntary, since they had a legal advocate.

What makes a prenup invalid in Texas?

A prenup may be deemed invalid in Texas if it is not in writing and signed by both parties, if it does not include adequate financial disclosure, if one party did not enter into the agreement voluntarily, or if the agreement is unconscionable. Other (less common) grounds for invalidating a prenup include agreements that are against public policy or Texas law, such as requiring one or both parties to commit illegal acts.

How long before the wedding should I sign a prenup in Texas?

Texas law does not specify a specific timeframe for when a prenup must be signed before the wedding. It only specifies that a prenup must be signed before the wedding, and it becomes effective upon the marriage itself. (Tex. Fam. Code § 4.004). For example, in the case of Williams v. Williams, a Texas couple signed a prenup the day before the wedding, and the court enforced it still. (Williams v. Williams, 720 S.W.2d 246 (1986)). The court explained that there was no fraud, duress, or overreaching in this situation because of the parties' maturity, business backgrounds, and motivations.

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What can & can't be in a Texas prenup

Does cheating void a prenup in Texas?

No, cheating does not void a prenup in Texas. In Texas, there are specific grounds one may challenge a prenup under, and adultery is not one of them. The grounds that a party may challenge a prenup under in Texas include improper execution, improper financial disclosure, involuntariness, and/or unconscionability.

Are infidelity clauses enforceable in Texas?

According to Texas prenup attorney Daryl Weinman:

Can a prenup include child custody in Texas?

No, prenups in Texas may not include child custody provisions. This is because child custody matters are determined by the best interests of the child and may not be predetermined by a contract between the parents. (Tex. Fam. Code § 153.002). For example, what is in the best interest of the child may not be the same at the time of the creation of the prenup versus at the time of the divorce. The determinations may no longer make sense for the child, and a court will not uphold something that would be harmful or not beneficial for the child, simply because of a contract.

Can a prenup protect a business in Texas?

Yes, a Texas prenup may protect business interests. This can include business growth, property, equipment, accounts, income, debt, and equity. As long as these business interests are marked as separate property, not divisible in a divorce in the prenup. Without a prenup, businesses started with one spouse's separate property, but that creates income and profits during the marriage, may still be divided as community property in a divorce. This is why it's important to utilize a prenup to protect businesses, including all possible scenarios in the future.

Can a prenup protect inheritance in Texas?

Yes, prenups can protect inheritances in Texas. Plus, without a prenup, the default rule in Texas is that inheritances to one spouse are considered separate property and not divisible in a divorce. Tex. Fam. Code § 3.001. However, prenups help ensure it stays that way because it is still possible for inheritances to be considered joint property if commingled or contributed to by the other spouse. For example, if inherited funds are deposited into a joint bank account or used toward jointly owned property, a dispute during the divorce may arise over whether these funds became community property or created reimbursement claims. A prenup can help better protect inherited funds and clarify how they should be treated.

Marital property in Texas

Is Texas a community property state?

Yes, Texas is one of the nine community property states in the US. Tex. Fam. Code § 3.002. A community property state is one that utilizes a certain framework for dividing property in a divorce. The framework generally follows the rule that any property made, acquired, or earned, regardless of title or who acquired it, during the marriage, is shared property. If something is deemed community property, then it is to be divided 50-50 automatically. This is compared to the framework of equitable distribution (which all of the other states utilize), and a judge is given discretion to divide property as they see fit.

How is property divided in a divorce in Texas without a prenup?

Without a prenup, courts in Texas divide property under community property principles. This means that any property acquired during the marriage, or that is not otherwise deemed separate property, is divided equally in the divorce. This is the case even if the title is in one name or the other spouse had nothing to do with the purchase of the property.

Does a prenup override community property in Texas?

Yes, a valid and enforceable prenup can override community property laws in Texas. This is often the main reason a couple opts for a prenup in the state. Prenups can outline which assets are separate property, even if it is acquired during the marriage (which would be considered community property without a prenup), and a court will honor those terms as long as it is enforceable.

What is separate property in Texas?

Separate property is defined in Texas by Tex. Fam. Code § 3.001, which states that separate property includes property acquired prior to marriage, property received by inheritance or gift, and property acquired by personal injury. Additionally, Texas case law further explains that separate property may also include appreciation, depending on how the appreciation arose. If it were passive appreciation, then it remains separate property. However, if the appreciation was due to marital efforts, then it may be subject to a community property reimbursement. (Jensen v. Jensen, 665 S.W.2d 107 (1984)).

Spousal support in Texas

Can a prenup waive alimony in Texas?

Yes, parties to a prenup can waive maintenance (i.e., alimony) in their Texas prenup. Alimony is called "maintenance" in Texas, and it is the financial support from one spouse to another during and after a divorce. (Tex. Fam. Code § 8.001). As long as the prenup itself is valid and enforceable, then an alimony waiver within that agreement will also be enforced. Financially independent couples often choose to waive alimony in prenups to avoid future disputes over support payments if they divorce.

Does a prenup prevent spousal support in Texas?

Yes, a prenup can prevent spousal support (i.e., maintenance) in Texas, as long as that is how the agreement is drafted. Prenups can also require alimony payments, or even put a guardrail on how much alimony can be paid. It depends on what the couple agrees on. Prenups don't necessarily automatically prevent spousal support, but must be drafted in a way to do so. With HelloPrenup, you can include a waiver that prevents spousal support in Texas at no additional cost.

How is alimony determined in Texas without a prenup?

Texas is considered a more restrictive state when it comes to awarding alimony because it limits eligibility to couples who have been married for at least 10 years. The only exceptions to that rule include domestic violence, illnesses/disabilities, or caring for disabled children. (Tex. Fam. Code § 8.051). This means a couple married for 9 years, with no disabilities, domestic violence, or caregiving of disabled children, may not seek any alimony from one another. If the parties have been married for 10 years or more, then a court may consider a set of factors, such as a spouse's ability to pay alimony, earning capabilities, and others, when awarding the duration and amount of alimony. (Tex. Fam. Code § 8.052).

How much does a prenup cost in Texas?

How much does a prenup cost in Texas?

According to Texas prenup attorney, Jessica Worden, "the price of a prenup varies from $1,000-$4,000, and that's just for one attorney to create it. There are additional costs for another attorney to review it. These costs are only increasing over the years." This means the total price of a Texas prenup for both parties can climb up to $8,000 or more, depending on the situation and the attorney's rates. Luckily, with online prenup platforms, this price has been drastically brought down. For example, with HelloPrenup, you can download a state-compliant prenup for just $599. If you want to add on optional attorneys for both parties, that's an additional $1,398, significantly less than the potential $8,000+ cost of hiring traditional attorneys separately.

What is the cheapest way to get a prenup in Texas?

The cheapest way to get an enforceable prenup in Texas is to utilize a reputable online prenup platform. Adding on attorney review of your online Texas prenup can increase the odds of enforceability as well. HelloPrenup offers a state-compliant Texas prenup for $599 flat (that's for both partners). If you want to add on attorney services, that's an additional flat fee. While it may be tempting to utilize AI tools, such as ChatGPT, they may still not be a reliable way to get a prenup. Many of these tools still lack certain features, such as applying relevant case law or ensuring proper execution of the document.

How much does a prenup lawyer cost in Texas?

The average hourly rate for a lawyer in Texas is $366 per hour. This rate may be lower or higher, depending on the area of law, the lawyer's geographic area (Austin v. Wichita Falls), the lawyer's accolades, and experience. In addition, the total cost (i.e., the number of hours) that the attorney will charge you for a prenup will vary depending on your situation. For example, if you have complex finances, it will take the attorney more time to sift through the financial statements. Or if you have a lot of back-and-forth in negotiations, it will also rack up the hours.

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How to get a prenup in Texas

How do I get a prenup in Texas?

There are three main ways to get a prenup in Texas: (1) Hire two attorneys to draft, review, and negotiate on your behalf, (2) Use an online prenup, or (3) Use an online prenup plus hire attorneys to review the online prenup (cutting out the step where an attorney drafts the agreement). Any of these options can be a great way to create an enforceable agreement between you and your future spouse. The most affordable option is usually #2 (utilizing a state-compliant online prenup platform).

Can I write my own prenup in Texas?

Yes, you can technically write your own prenup in Texas and have it hold up in court, as long as it complies with the state's rules. However, it is riskier to write your own prenup, as you may include unenforceable clauses, contradictory clauses, or not properly understand how to compliantly execute the agreement. Attorneys and reputable online prenup platforms can help ensure the agreement is not only cohesive and protective but also enforceable.

How long does it take to get a prenup in Texas?

It depends on each party's commitment to the process. If you are hiring attorneys, their speed in drafting and reviewing also comes into play. With HelloPrenup, you can download a state-compliant Texas prenup in 2 hours. If you choose to add-on Texas attorneys, that may add a few days to the process, again, depending on each fiancé's time commitment and the selected attorneys' availability and speed.

Do I need a lawyer to get a prenup in Texas?

No, hiring lawyers is not necessary to get a valid and enforceable Texas prenup. (Matter of Marriage of Sauls and Worley, 648 S.W.3d 359 (2021)). However, hiring attorneys for both fiancés can help increase the odds of enforceability, as the presence of lawyers can deter arguments of involuntariness. For example, if one party tries to argue that they didn't understand the terms or that they didn't otherwise voluntarily enter into the agreement, it becomes harder to prove if that same person had competent legal advice and advocacy because independent counsel can demonstrate that the party was informed of their rights, understood the agreement, and was able to negotiate terms before signing.

Caselaw & enforceability

Are prenups enforceable in Texas?

Yes, prenups are enforceable in Texas under Tex. Fam. Code §§ 4.001–4.010. Texas specifically enacted this statute to clarify exactly how to create an enforceable prenuptial agreement. These requirements include putting it in writing and signing it, including financial disclosure, entering the agreement voluntarily, and ensuring it is not unconscionable. For example, if a party can show that they were coerced into signing or that they were not provided all of their spouse's relevant financial information before signing, a court may decline to enforce some or all of the agreement.

How hard is it to break a prenup in Texas?

It is difficult to break a properly executed prenup in Texas. "Breaking a prenup," or getting a prenup thrown out, is only possible if one party challenges the agreement under a viable legal reason, such as unconscionability. Other ways to break a prenup include fraud, duress, coercion, overreaching, voluntariness, improper financial disclosure, or improper execution (e.g., lack of signatures). For example, to show a lack of voluntariness, the court will look at the totality of the circumstances to make a determination, but unfavorable terms alone are generally not enough. (Sheshunoff v. Sheshunoff, 172 S.W.3d 686 (2005)).

Can a judge throw out a prenup in Texas?

Yes, a judge can technically throw out a prenup in Texas, but only if it is under one of the legal grounds to do so. In other words, a judge can't just decide for any old reason that a prenup is null and void; there has to be a state-backed reason for it. Those reasons include lack of signatures, improper financial disclosure, unconscionable terms, or either party involuntarily entering into the agreement.

What can void a prenup in Texas?

There are only a handful of legal grounds for voiding a prenup in Texas. Here are the ways a prenup can be voided in the state:

• Lack of signatures
• Not in writing
• Improper or inadequate financial disclosure
• Involuntariness (such as fraud, duress, coercion, or overreaching)
• Unconscionability (i.e., overly unfair)

In addition, if the agreement is against public policy or Texas law, such as requiring illegal acts, the agreement will also be voided.

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Duration & after-marriage

How long does a prenup last in Texas?

A prenup in Texas will technically last forever, unless you put an expiration date on it in the agreement itself. Some couples opt in to a "sunset clause," which is effectively an expiration date on their prenup. They often state a specific wedding anniversary (e.g., 20th anniversary) as the expiration of the prenup. Once the 20th wedding anniversary happens, the prenup is null and void, and a divorce would take place under the default laws of the state. In Texas, that means community property laws would apply.

Can you get a prenup after marriage in Texas?

No, you cannot get a prenuptial agreement after marriage in Texas, but you can get a postnuptial agreement (postnup). Postnups are similar to prenups in that they both outline financial obligations between a couple, such as property division in a divorce, but postnups are subject to stricter scrutiny by Texas courts due to the confidential relationship between husband and wife. (In re Marriage of Smith, 115 S.W.3d 126 (Tex. App. 2003)). This means that a court will take a closer look at the agreement, more so than it would at a prenuptial agreement.

Can you change a prenup in Texas?

Yes, parties may change (i.e., amend) a prenuptial agreement under Tex. Fam. Code § 4.005, which states that prenups may be amended as long as they are in writing. They must comply with the same requirements as the original agreement, such as being voluntary and not unconscionable. Couples may want to change certain terms of their prenup if they have significant financial or lifestyle changes, such as an unexpected, large inheritance, starting a business, or taking on substantial debt.

Cross-border & recognition

Is a prenup signed in another state valid in Texas?

Generally, yes, Texas will uphold prenups created and signed in other states, as long as they were validly created in the original state. Texas has a strong public policy favoring prenups. (Marsh v. Marsh, 949 S.W.2d 734 (1997)). Just because the prenup was signed in another state does not automatically render it invalid in Texas. Instead, a court will ensure it meets basic contract principles, and then it may apply the law of the state where the agreement was executed or the law chosen by the parties in the agreement itself.

What happens to my Texas prenup if I move to another state?

It depends on the laws of the new state. Generally, states will enforce prenups executed in other states, as long as it was done so correctly in the original state. However, whether or not the state applies underlying substantive law to interpret the agreement from another state may vary. For example, if a couple signed their prenup in Texas and then moved to another state and got a divorce, the divorce court would potentially (1) ensure the prenup was executed properly under Texas laws, and (2) apply Texas substantive law or the new state's substantive law, depending on the agreement's choice-of-law provision, the state's conflict-of-law rules, and whether applying Texas law would violate the new state's public policy.