Divorce laws in Texas, as well as attempts by marrying parties in the state of Texas, treat premarital agreements as a legitimate means of preventing community property. In short, the state of Texas is what is known as a “community property state”, which means any divorce is subject to the “just and right” division of assets in the event of a divorce, per the discretion of the presiding court. This discretion of the courts and equitable distribution of property is only applicable to community property, or any property not distinctly noted as separate property. In the state of Texas, the courts have no ability to strip away, divide, or otherwise disseminate separate property during the dissolution of a marriage. In turn, any prenuptial or premarital agreement in the state of Texas will expressly attempt to define what separate property is and agree beforehand that any separate property, as well as any income derived from the separate property, remain separate in the event of divorce.
Requirements of a Valid Premarital Agreement in Texas
In essence, a premarital agreement attempts to pre-determine the distribution and ownership of assets in the event a marriage ends in divorce. One notable issue that cannot ever be resolved beforehand is any items related to child custody or child support, which will always be determined based on the best interests of the child.
Per Texas Family Code, Chapter 4, per the Uniform Premarital Act, the following elements must be in place in a premarital agreement in order for the agreement to be deemed enforceable and valid. These elements include:
- The agreement must be signed and the terms of the agreement accepted by both parties without duress or any form of coercion. The agreement must be in written form, and in virtually all instances, oral contracts are entirely unenforceable
- The agreement must be made in full disclosure or without the presence of fraud or omission
- The agreement cannot be deemed unconscionable, which is determined by the courts per case law. In brief, this element requires the agreement to refrain from being so unfair or inequitable that any reasonable person, with full disclosure and ability to make reasonable decisions, would have rejected such an agreement.
Getting Legal Help with Premarital Agreements in Texas
The reality of premarital agreements is that these documents are legally binding and enforceable arrangements with indefinite future implications, if a marriage dissolves. Furthermore, highly case-specific considerations play a considerable role in determining what constitutes a fair and equitable premarital agreement. Having legal counsel is highly recommended during any consideration of a premarital or post marital agreement between spouses.
